\^,^^'^''. 
 
 THE LIBRARY 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 m^ 

 
 Abbo-H-, CWar\es, i s"^ ba-r^n Te^.W^' 
 
 TEEATISE OF THE LAW 
 
 RELATIVE TO 
 
 P^^^Iimtt ^Up & ^piip 
 
 xnr SIX PARTS. 
 
 I. OF THE OWNERS OF MERCHANT SHIPS. 
 II. OF THE BOARD OF TRADE— LOCAL MARINE 
 BOARDS— MERCANTILE MARINE OFFICES 
 AND NAVAL COURTS. 
 Ill, OF THE PERSONS EMPLOYED IN THE 
 NAVIGATION OF MERCHANT SHIPS. AND 
 OF THE CONVEYANCE OF PASSENGERS. 
 
 IV. OP THE CARRIAGE OF GOODS IN MER- 
 CHANT SHIPS. 
 
 V. OF THE HIRING AND WAGES OP MERCHANT 
 SEAMEN. 
 
 VL OF GENERAL AVERAGE —SALVAGE — COL- 
 LISION— AND MARITIME LIENS. 
 
 BT 
 
 CHARLES, LORD TENTERDEN, 
 
 LATE CHIEF JUSTICE OP ENGLAND. 
 
 CtoelftS Ortiition. 
 
 BY SA.MUEI. PKENTICE., ESQ., 
 
 OF THE MIDDLE TEMPLE; ONE OF HER MAJESTY'S COIJ>'SEL. 
 
 LONDON: 
 SHAW AND SONS, FETTER LANE, FLEET STREET, E.G., 
 
 1881.
 
 XOXDOX: PEINTED BY SHAW A:;rD SONS, PETTEE lANE. 
 
 
 yA
 
 
 
 PKEFACE 
 
 THE TWELPTH EDITION 
 
 Much of our Maritime Law is to be collected from the 
 decisions of our courts, which are mainly founded on 
 usage and established custom, as well of our own as other 
 countries, and many of the celebrated Codes and Laws 
 hereafter referred to have assisted the courts in the 
 decisions they have come to. There are, however, many 
 statutory enactments relating to merchant shipping and 
 maritime matters which have much altered, and now 
 to a great extent regulate the Maritime Law of this 
 country. It may be advisable to say a few words re- 
 specting some of the above-mentioned Codes and Laws. 
 
 Maritime Codes and Laws have been compiled and 
 made in different ages and countries. 
 
 The Ehodian Maritime Laws are the most ancient, and 
 some of these Laws were adopted by the Eomans. 
 
 II Consolato del Mare, the earliest Code of Maritime 
 Laws of modern Europe, was first printed in the 14:th 
 century. These Laws are the most ancient authentic sea 
 Laws after those of the Greeks and Eomans. They pre- 
 vailed in the Mediterranean, and were established in 
 concert with other trading countries by the Venetians and 
 Genoese in the time of theu' naval power and commercial 
 
 a 2 
 
 617437
 
 iv PREFACE TO THIS EDITION. 
 
 13rosperity. These Laws are treated with great respect by- 
 all maritime Europe. 
 
 The Laws of Oleron (a small island off the coast of 
 Trance) are so called from the place of their publication. 
 These Laws were first established in the 12th century. 
 They are the ancient usages generally received, which 
 it is said Eichard I.^ on his return from the Holy Land to 
 Oleron, revised and approved for matters marine, and 
 which all the people of the West afterwards received 
 for those affairs. {Sir L. Jen., vol. I., p. 87.) England 
 and Erance contend for the honour of having originated 
 this system of Laws. 
 
 The Laws of Wisbuy were published in the 12th or 13th 
 century. This place for some time was one of the most 
 celebrated markets of Europe. It seems that all the 
 people of the North observed these Laws. 
 
 The Laws of the Hanse Towns were first enacted and 
 promulgated in 1597 at Lubeck^ one of the Hanse Towns. 
 They were framed by a General Assembly called together 
 for that purpose, and were in extensive application among 
 the northern powers of Europe. These Laws appear to be 
 founded on the Laws of Oleron and Wisbuy. 
 
 Marine Ordinances in the time of Louis XIA'., published 
 in 1681, which have been said to be a monument of the 
 wisdom of his reign. These Laws were compiled from the 
 maritime regulations of France and other States, and from 
 the experience of commercial men ; — they refer generally 
 to Maritime Law. Valin published a Commentary on 
 them, which has become celebrated, and is very often 
 referred to in our law books. 
 
 English translations of the Laws of Oleron, Wisbuy,
 
 PREFACE TO THIS EDITION. V 
 
 the Hanse Towns, and of the Marine Ordinances of 
 Louis XIY., will be found in the Appendix to Peter's 
 Admiralty Decisions. 
 
 The works of many learned and celebrated foreign 
 authors are referred to in the course of this Avork. 
 
 Lg Guidon is a Erench work ; it was published in the 
 16tli century, and relates chiefly to bottomry and in- 
 surance. 
 
 Cleirac was a French author, who published in 1647 
 Usages and Customs of the Sea. 
 
 Boccus was a Neapolitan lawyer ; he published a work 
 on Maritime Law in 1655. 
 
 Casaregis ^vsis an Italian judge; in the following cen- 
 tury his work was published. He is said to be one of the 
 best of all maritime authors. 
 
 The well-known works of Pothiery Emerigoii, Pardessus, 
 &c., are referred to. 
 
 Something here also ought to be stated as to the Admi- 
 ralty Jurisdiction, but it must be remembered that this 
 work does not profess to treat of the Admiralty juris- 
 diction or of the practice in Admiralty cases. Before 
 the Judicature Acts the High Court of Admiralty had 
 jurisdiction to try all maritime causes, that is to say, 
 causes in respect of things done on the high seas, and 
 generally, except where otherwise provided by statute ; 
 in order to give such Court jurisdiction, things must have 
 arisen wholly upon the sea and not within the pre- 
 cincts of any county (a). Many cases in which this 
 Court had jurisdiction will be noticed in the course of this 
 
 (a) See the Black Book of the Admiralt}-.
 
 Vi PREFACE TO THIS EDITION. 
 
 work. In some cases it had exclusive jurisdiction. There 
 were several statutes affecting the jurisdiction and practice 
 of this Court, and in particular 3 & 4 Vict. c. 65, and the 
 24 & 25 Vict. c. 10, which extended the jimsdiction and 
 improved the practice of this Court, and made it a Court of 
 Record. The jurisdiction conferred by this latter Act might 
 be exercised either by proceedings in rem or in personam. 
 This method of proceeding in rem was peculiar to this 
 Court, and sometimes it was in order to avail themselves 
 of the advantages thus afforded that suitors resorted 
 to it. 
 
 Before the Naval Prize Act, 18G4 (27 & 28 Vict. c. 25), 
 the judge of the Court of Admiralty by Royal Warrant 
 exercised in time of war the office of judge of the Naval 
 Prize Court^ and his Ordinary Court was distinguished 
 from his Prize Court by the name of the Instance Court. 
 By this statute (sect. 3), which commences by reciting 
 that " it is expedient to enact permanently, with amend- 
 ments, such provisions concerning naval prize, and matters 
 connected therewith, as have heretofore been usually 
 passed at the beginning of a war/' it is enacted that ^' the 
 High Court of Admiralty, and every Court of Admiralty 
 or of Vice-Admiralty^ or other court exercising Admu'alty 
 jurisdiction in Her Majesty's dominions, for the time being 
 authorised to take cognizance of and judicially proceed in 
 matters of prize, shall be a Prize Court within the meaning 
 of this Act. Every such court, other than the High Court 
 of Admiralty^ is comprised in the term ' Vice-Admiralty 
 Prize Court,' when hereafter used in this Act ; " and by 
 sect. 4, " The High Court of Admiralty shall have juris- 
 diction throughout Her Majesty's dominions as a Prize
 
 PEEFACE TO THIS EDITION. Vll 
 
 Court. The Higli Court of Admiralty as a Prize Court shall 
 have power to enforce any Order or Decree of a Vice- 
 Admiralty Prize Court; and any Order or Decree of the 
 Judicial Committee of the Privy Council in a Prize 
 Appeal." 
 
 By the Judicature Act, 1873, section 3 (amended by 
 the Judicature Act, 1875, section 9), the then existing 
 superior courts, including the High Court of Admiralty, 
 are united and constitute one Supreme Court of Judica- 
 ture. This Court consists of two permanent divisions, one 
 of which is called H. M.'s High Court of Justice, and 
 the other H. M.'s Court of Appeal. The High Court of 
 Justice is divided into five divisions ; one of such divisions 
 is called the Probate, Divorce, and Admiralty Division. 
 This division, for the sake of brevity, is frequently in this 
 work called the Court of Admiralty. By the Judicature 
 Act, 1873, section 34i, there is assigned, subject to rules 
 of court and orders of transfer, to this last-mentioned 
 division, all causes and matters pending in the Court of 
 Probate, or in the Court for Divorce and Matrimonial 
 Causes, or in the High Court of Admiralty, at the com- 
 mencement of this Act. All causes and matters ■which 
 would have been within the exclusive cognizance of the 
 Court of Probate, or the Court for Divorce and Matri- 
 monial Causes, or of the High Court of Admiralty, if 
 this Act had not passed. As to the person commencing 
 an action for a cause or matter which would have been 
 within the non-exclusive cognizance of the High Court of 
 Admiralty, if the Judicature Act had not passed, assign- 
 ing the action to this latter division, see Judicature 
 Act, 1875, section 11, sub-sect. 3 ; 0. 5, r. 4.
 
 Yin PEEPACE TO THIS EDITION. 
 
 As to the Admiralty jurisdiction of the county coui'ts, 
 see 31 & 32 Vict. c. 71 ; 32 & 33 Yict. c. 51, set out in the 
 Appendix; 36 & 37 Vict. c. m (the Judicature Act, 1873), 
 ss. 89—91 ; 38 & 39 Vict. c. 50, ss. 4, 10, 11. Sect. 4 of 
 this Act enables a county court judge to do certain things 
 out of his district ; sects. 10 and 11 of the Act relate to 
 appeals from county courts in Admiralty causes. 
 
 As to the City of London Court possessing the Admiralty 
 jurisdiction of a county court, see 30 & 31 Vict. c. 142, s. 35 ; 
 Order in Council 14 Jan. 1869 ; 31 & 32 Vict. c. 71, s. 2. 
 
 As to the jurisdiction in Admiralty of the Court of 
 Passage at Liverpool, see the 31 & 32 Vict. c. 71 ; 32 & 33 
 Vict. c. 51 ; Order in Council, 14 Jan. 1869. The law 
 relating to the Admiralty jurisdiction of this court for the 
 most part is the same as that applying to the county 
 coui-ts. 
 
 Vice Admiralty courts are established in different parts 
 of H. M.'s dominions. As to their jurisdiction, see 26 & 27 
 Vict. c. 24; 27 & 2S Vict. c. 25 (the ]N"aYal Prize Act, 
 1864), ante, p. vi ; 30 & 31 Vict. c. 45 ; 36 & 37 Vict. c. 85, 
 s. 5; 39 & 40 Vict. c. 59, s. 23. This latter enactment 
 relates to the mode of appointment of certain officers. 
 
 Admiralty courts are also established in most foreign 
 countries. As to when their decisions are bindins: and 
 conclusire, see the notes in Smith's Leading Cases to the 
 Duchess of Kingston's Case; BernarcU v. Motteux, 2 Dougl. 
 574 ; Baring v. Claggett, 3 B. & P. 201 ; Castrique v. Imrie, 
 L. E. 4 H. L. 414. 
 
 As to the jurisdiction of Justices of the Peace in cases 
 of damage to harbours, &c., see 10 & 11 Vict. c. 27, 
 ss. 74, 75 ; in cases of salvage, see 17 & 18 Vict. c. 104,
 
 TEE FACE TO THIS EDITION. IX 
 
 ss. 460, ct scq. ; of title to Tvreck, see 17 & 18 Vict. c. 104^ 
 s. 472; 25 & 26 Yict. c. 63, ss. 49, 50;, of wages, see 17 & 18 
 Vict. c. 104, s. 188. 
 
 As to the jurisdiction within the Cinque Ports in cases 
 of salvage and certain other cases, see 1 & 2 Geo. 4, c. 76 ; 
 9 Geo. 4, c. 37 ; 17 & 18 Yict. c. 104, s. 460; 18 &19 Vict. 
 c. 48, s, 10. 
 
 It may, for the purpose of explaining certain passages 
 in this edition, he here noticed^ that hy the Judicature Acts, 
 law and equity were fused, and a great alteration made in 
 the law of set-off and counter-claim. By 0. 19, r. 3, " A 
 defendant in an action may set-off, or set-up, hy way of 
 counter claim against the claims of the plaintiff, any right 
 or claim, whether such set-off or counter-claim sound in 
 damages or not, and such set-off or counter-claim shall 
 have the same effect as a statement of claim in a cross 
 action, so as to enahle tlic court to pronounce a final 
 judgment in the same action, hoth on the original and 
 on the cross claim. But the court or a judge may, on 
 the application of the plaintiff hefore trial, if in the 
 opinion of the court or judge such set-off or counter-claim 
 cannot he conveniently disposed of in the pending action, 
 or ought not to he allowed, refuse permission to the 
 defendant to avail himself thereof." {See *' Arch, hy 
 Prentice/' 13 ed. p. 267.) 
 
 On account of the great weight attached to anything 
 written hy, or which had the sanction of Lord Tenterdcn, 
 it has heen thought advisable to show in this edition, hy 
 means of brackets, the parts which are the same as in the 
 fifth edition of this work, which was the last published in 
 the lifetime of Lord Tenterden ; this edition contains no
 
 X PREFACE TO THIS EDITION. 
 
 reference to any case of later date than 1827. Since Lord 
 Tenterden's time, tlie law on the subjects treated of in 
 this work has been much altered by the M. S. Acts and 
 other Acts of Parliament, which has rendered necessary 
 considerable alterations and additions. 
 
 The sections of the 17 & 18 Vict. c. 104 (the M. S. Act, 
 1851i), are frequently referred to Avithout the title of the 
 Act, or 17 & 18 Vict. c. 104, being prefixed to them. 
 
 S. PRENTICE. 
 
 Middle Temple, 
 
 October, 1880.
 
 PREFACE 
 
 TO 
 
 THE FIEST EDITION 
 
 CoN'siDEEiNG the great importance of every branch of law 
 relating' to Maritime Commerce, it is a matter of surprise 
 that no Treatise on the subjects discussed in the following 
 sheets should have been written by any member of the 
 profession of the law for a very long period of years. It is 
 now more than a century since the first publication of the 
 work of Molloy, the only E/if/Ii.^h Lairijcr\f\\o has written on 
 these matters. During that period the law of the country 
 has grown up with its commerce ; many interesting points 
 have been argued by able and eloquent Advocates, and 
 decided by learned and enlightened Judges ; and some 
 very important regulations have been introduced by the 
 Legislature : but very little of useful addition has been 
 made to the collection of M<jlloij, either by the subsequent 
 editors of his Treatise, or by the other authors who have 
 written on the same topics. Yet, the absence of a general 
 and established code of Maritime Law, which almost every 
 other European nation possesses, seems to render a collec- 
 tion of the principal points of that law peculiarly necessary, 
 both for English merchants and English lawyers. On the 
 subject of Insurance, this has been already effected. In the 
 present Treatise an attempt is made to supply the defect 
 in some other branches. And in order to render the work 
 as generally useful as the nature of it will allow, great
 
 Xll PEEFACE TO THE FIRST EDITION. 
 
 care lias been taken to avoid the use of technical phrases, 
 wherever the form and manner of legal proceedings are 
 not the principal points of consideration. The reader, 
 who is of the profession of the law, may, I fear, some- 
 times he disgusted at this ; and at other times censure 
 the awkward expressions substituted for the language to 
 which his ear is familiar. The only excuse that can be 
 offered for the latter fault, is the difficulty of expressing 
 ideas to which the mind is habituated, in any other words 
 than those to wliich we are accustomed : a difficulty, o^ 
 which the conversation of all persons who are engaged in 
 any art or science furnishes daily experience. 
 
 The Treatise now offered to the public is compiled, not 
 only from the text-writers of our own Nation, and the 
 rej)orters of the decisions of our own Courts, but also from 
 the books of the Civil Law, and from such of the maritime 
 laws of foreign nations, and the works of foreign writers, 
 as I have been al)le to obtain a knowledge of. A few 
 decisions of the House of Lords are quoted from the 
 printed statements delivered by the contending parties, 
 and the Journals of the House. Some judgments pro- 
 nounced by English Judges are also introduced, which 
 have not hitherto been made public ; for the most valuable 
 part of these I am indebted to Mr. Justice Laicreiice, and 
 particularly for the cases of Parish and Grau-ford, Applehy 
 and Pollocl; and Day and Searle : the case of Machrell 
 against Simoncl and HanJceij was communicated to me by 
 the late Mr. Justice BuUer, who, when at the Bar, argued 
 it on behalf of the defendants : the rest are cited from 
 notes taken by myself or my professional friends. Indeed, 
 I am indebted to my friends not only for assistance of this 
 kind, but also for the loan of scarce books, the correction 
 of some errors, and the suggestion of many valuable hints 
 for the improvement of the Avork. Of the assistance thus
 
 PREFACE TO THE FIPST EDITION. 3^111 
 
 afforded me I shall ever entertain the most grateful re- 
 membrance, and my reader will experience the advantage 
 in many parts of this book. 
 
 The Ordinances most frequently quoted are those of 
 Oleroii and Wishni/, the two Ordinances of the Hanse 
 Towns, and the Ordounance de la Marine du Mois d'Aoust 
 1681. The Ordinances of Oleron and Wisbuy and the first 
 Hanseatic Ordinance are in the hands of every lawyer; 
 and whenever the Hanseatic Ordinance is mentioned 
 generally, the reader will understand this to be spoken of, 
 The Hanseatic Ordinance of the year IGll was published 
 with a Latin translation and commentary by Kuricl-e in a 
 small quarto, at Hamburgh, in the year 1677. This book 
 is very scarce in this country : the Ordinance itself is 
 arranged and divided, and contains some additional regula" 
 tions, which, however, are little more than a detail of the 
 principles comprised in the first Ordinance. Eeference is 
 also occasionally made to such other foreign Ordinances 
 as are to be found in the second volume of Magens's Essay 
 on Insurances. I have often lamented my inability to 
 consult the earliest maritime code of modern Europe, the 
 Consolato del Mare. There is an old Erench translation 
 of this body of laws, but I could never meet with it, and I 
 am ignorant of the Spanish and Italian langnages. When- 
 ever, therefore, I have referred to this code, the reference 
 is taken from the work of some other author ; and it is 
 made for the purpose of giving an opportunity of consulting 
 the original to those whose superior attainments enable 
 them so to do. The Ordinance of Louis the Eourteenth is 
 quoted from the edition published with a most learned and 
 valuable commentary by Valin, in two volumes, quarto, at 
 Eochelle, in the year 1766, and is cited by the name of the 
 French Ordinance. An English translation of the whole 
 of this Ordinance is contained in a book called ^' A general
 
 XIV PEEPACE TO THE FIEST EDITION. 
 
 Treatise of the Dominion of the Sea, and a complete Body 
 of Sea Laws," published in quarto, in the early part of the 
 last century. The translation is divided into sections, and 
 not like the Prench of VaUn, into books and titles ; but 
 the subjects and articles of the sections in the English are 
 the same as those of the titles in the Erench ; and as the 
 latter are always cited in the notes to this Treatise, recourse 
 may be had to the English translation with very little 
 difficulty. If the reader should be offended at the frequent 
 references to this Ordinance, I must request him to re- 
 collect that those references are made to the mari- 
 time code of a great commercial nation^ which has 
 attributed much of its national prosperity to that code ; a 
 code compased in the reign of a politic prince, under the 
 auspices of a wise and enlightened minister^ by laborious and 
 learned persons, who selected the most valuable principles 
 of all the maritime laws then existing ; and which, in 
 matter, method, and style, is one of the most finished acts 
 of legislation that ever was promulgated (a). 
 
 The writings of some foreign authors are also occa- 
 sionally cited, particularly the Notabilia of Roccus, and 
 the treatises of Pothier and Emerigon. The Notabilia of 
 Boccus are an abstract of the most useful points contained 
 in the works of earlier authors, and in the Digest and Code 
 of Justinian. Where this author is cited generally, the 
 reference is to the Notabilia de Xavibus et Naulo. The 
 treatises of Potliier are remarkable for the accuracy of 
 the principles contained in them, the perspicuity of their 
 arrangement, and the elegance of their style. The treatise 
 of Emerigon is peculiarly valuable for its extent of learned 
 research, and the numerous and apt citations of the texts 
 
 («) The esteem in which this Ordinance haa been held in France is abundantly 
 shown by the little alteration that is made in the Code de Commerce of the year 
 1807,
 
 PREFACE TO THE FTEST EDITION, XV 
 
 of the Civil Laws, and of the Maritime Ordinances, the 
 opinions of former Avriters, and the adjudications of the 
 Courts of Justice of his own country, which are to he found 
 in every part of it. 
 
 It should he ohserved, however, not only of all these 
 treatises, hut also of the Civil Law, and the Ordinances, 
 without excepting even the Ordinance of Oleron (which 
 being considered as the edict of an English Prince^ has 
 been received with peculiar attention in the Court of 
 Admiralty), that they have not the binding force or au- 
 thority of law in this country, and that they arc here 
 quoted, sometimes to illustrate principles generally ad- 
 mitted and received, sometimes to show the opinion of 
 learned persons, and the rule adopted in maritime nations 
 upon points not hitherto settled hy the authoritij of our own 
 law ; and at other times to furnish information that may 
 be useful in our commercial intercourse with foreio-n 
 states. 
 
 In the composition of this Treatise, my object has been 
 rather to arrange and illustrate principles, than to collect 
 the decisions of Courts or the Acts of the Legislature. 
 The cases therefore are, with few exceptions, stated in a 
 concise manner; and the clauses of Acts of Parliament 
 are abridged, whenever an abridgment seemed likely to be 
 as satisfactory to the reader as a transcript. Of the insti- 
 tutions of written law, the precise words are often necessary 
 to a right understanding of the intention of the lawgiver. 
 I should have saved myself much, both of time and labour, 
 if I had copied more and abridged less. 
 
 There are few reported decisions of our Courts of Justice 
 from which some useful principle may not be extracted, 
 and I have therefore searched the books of reports with 
 much assiduity. Nevertheless, I am apprehensive that 
 some valuable cases may have escaped my attention, and
 
 ^\1 PREFACE TO THE FIRST EPITIOX, 
 
 I shall feel myself greatly indebted to any one, who will 
 point out to me such omissions of this kind as may fall 
 under his notice, or acquaint me with any other defects or 
 errors that he may observe. 
 
 Relying on the kindness of those who may peruse the 
 book with a friendly disposition to its author, and the can- 
 dour of those who may look into it for the sake of infor- 
 mation alone, I now offer it to the public, and to the 
 profession of which I am a member, with a sincere desire 
 that it may be found useful to both. 
 
 G. ABBOTT. 
 
 Inner Tesiple, 
 
 January 25, 1802.
 
 TABLE OF OOl^TEKTS. 
 
 PART I. 
 
 OF THE OWNERS OF SHIPS. 
 
 CHAPTER I. 
 
 Of the Owners of Ships in general; the modes by which Property in 
 them is acquired; the Rights and Liabilities attached to it; and 
 herein. 
 
 SECTS. PAGE 
 
 1. Of Title by Building aiid Purchase ... ... 1 
 
 2. By Purchase from the Master, and of his authority to sell ... 5 
 8. Of Title by Capture 16 
 
 4. Of the LiabiHties of Owners of Ships for Repairs done, or neces- 
 
 saries ... ... ... ... ... ... ... ... 20 
 
 5. Of the Liabilities of Charterers and ^0\vners, pro tempore, of 
 
 Ships ' 21 
 
 6. Of the Rights and Liabilities of Mortgagees ... 22 
 
 7. The Liabilities of Owners and Charterers of Ships further con- 
 
 sidered... ... ... ... ... ... 25 
 
 CHAPTER II. 
 
 Of Property in British Shij^s ; and of the History, Policy, and Regu- 
 lations of the Registry Acts ; and herein, 
 
 1. The Description and Ownership of British Ships 
 
 2. The Measurement of Tonnage 
 
 3. The Registry of Ships 
 
 4. Of the Certificate of Registry ... ... ... • ... 
 
 5. Of transfers and Transmissions of Ships and Shares of Ships 
 
 b 
 
 41 
 
 42 
 42 
 46 
 47
 
 XMll TABLE OF CONTENTS. 
 
 SECTS. PAGE 
 
 6. Of Mortgages of Ships 49 
 
 7. Of Certificates of Sale and Mortgage 50 
 
 8. Of Registry Anew, and Transfer of Registry ... ... ... 52 
 
 9. Registry, Miscellaneous ... ... ... ... ... ... 53 
 
 10. Fishery Boats, Lighthouse Boats, and Pleasure Yachts, &c. ... 55 
 
 11. Evidence of Declarations and Books of Registry 55 
 
 12. Offence of Forging or fraudulently altering Documents, making 
 
 False Declarations, &c. ... ... ... ... ... 56 
 
 CHAPTER III. 
 
 Of Part-owners of Shijjs ; and herein, 
 
 1. Of theii- legal relation to each other as Tenants in Common, or 
 
 as Partners and Joint-Tenants ... ... ... ... 57 
 
 2. Regulations for the enjoyment of their Common Property in case 
 
 of disagi'eement, — by the Laws of Foreign States ... ... 58 
 
 3. Jurisdiction exercised for that object by the Court of Admiralty 
 
 in England ... ... ... ... ... ... ... 59 
 
 4. Power of one Part-owner to bind the others by his Contracts. — 
 
 Office and Authority of Ship's Husband ... ... ... 61 
 
 5. Adjustment of the interests of Part-owners on Banki-uptcy of 
 
 one of them ... ... ... ... ... ... ... 64 
 
 6. Ship's Accounts, how adjusted between Part-owners ... ... 68 
 
 7. Interest of Part-owners as to Strangers : "Who to sue and be 
 
 sued ... ... ... ... ... ... ... ... 69 
 
 8. Extent of liability of each Part-owner for Supphes and Repairs 70 
 
 PART II. 
 
 OF THE BO.^KD OF TKADE, LOCVL M.\IIINE BOAJRDS, MERCANTILE MAEIXE 
 OFFICES, AXD NAV.\L COURTS. 
 
 1. General Functions of Board of Trade in relation to the Mercan- 
 
 tile Marine 72 
 
 2. Local Marine Boards ... ... 74 
 
 2. Duties of Mercantile Maiine Offices 75 
 
 4. Naval Com-ts ••• 75
 
 TABLE OP CONTENTS. xix 
 
 PART III. 
 
 OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MERCHANT SHIPS, AND 
 OF THE CON\"EYANCE OF PASSENGERS. 
 
 CHAPTEE I. 
 
 Of the Qualifications of the Creiv. 
 
 SECTS. TAGE 
 
 1. Of the Qualifications of the Master and Mates ... 76 
 
 2. OfEngineers 80 
 
 a. OfMariners 81 
 
 CHAPTER II. 
 
 Of the Authority of the Master ivith regard to the Employment of the 
 Ship ; and herein, 
 
 1. Of the different kinds of Contract under which Merchant Ships 
 
 are employed ... ... ... ... ... ... ... 83 
 
 2. Owners of Ships are bound by Contracts of the Master relative 
 
 to the usual coui'se of the Ship's employment ... ... 83 
 
 3. Cases upon this subject ... ... ... ... ... ... 86 
 
 4. Master's authority, when limited ... ... ... ... 89 
 
 5. Ground of the Liability of Owners, on the Contracts of the 
 
 Master 89 
 
 CHAPTER III. 
 
 Of the Authority of the Master with regard to Eepairs and other Neces- 
 saries furnished to the Ship; and herein, 
 
 1. Of the Liability of Owners of Ship and Employers of Master 
 
 upon his Contracts. — Of proceedings against them personally, 
 and against the Ship ... ... ... ... ... ••• 90 
 
 2. Of their personal Liability on his Contracts for Necessaries ... 91 
 
 3. Of Charges on the Ship in Specie.— Repairs done in England 
 
 not privileged as in Civil and Maritime Law. — Lien of Ship- 
 wright ... ... ... ... ... ... ... .•■ 99 
 
 4. Doctrine and Jurisdiction of the Court of Admiralty 102 
 
 5. In Foreign Ports Master may hypothecate his Ship, but not 
 
 generally at the residence of his Owners. — Of Contracts by 
 Bottomry 104 
 
 6. Requisites to validity of Bottomry Securities ... 110 
 
 62
 
 XX TABLE OF CONTENTS. 
 
 SECTS. 
 
 7. Must be for relief of Ship's necessities 
 
 8. Proceedings in Admiralty upon them 
 
 9. If several Securities of this kind, last entitled to priority 
 
 10. Extent to which Freight and Cargo may be pledged . . . 
 
 11. Eespondentia 
 
 PAGE 
 
 113 
 115 
 117 
 118 
 121 
 
 CHAPTER lY. 
 OJ the Behaviour of Master and Mariners ; and herein^ 
 
 1. Of the Master's Duty to his Employers 122 
 
 2. Of Offences committed by Master and Mariners. — Of his Duties 
 
 respecting them, and his general Duties on board Ship. — 
 Authority of Master to correct the Mariners 124 
 
 3. Regulations of Foreign Ordinances as to disposal of Ship's Pro- 
 
 visions... ... ... •■• ••• ••• ••• ••• 130 
 
 4. Of Breaches of Duty by the Mariners — Desertion, Mutiny, Dis- 
 
 obedience, &c — ... ... ... ••• ••• ••. 130 
 
 CHAPTER V. 
 
 Of Barratry. 
 
 1. Definition of Barratry ... ... ... 137 
 
 2. Acts of Barratry punishable by Statute .. . ... ... ... 138 
 
 3. Barratrous disposal of Ship and Cargo ... ... ... ... 139 
 
 4. Not resistmg Pirates ... ... ... ... ... ... 139 
 
 CHAPTER VI. 
 
 Of the Laws for the Encouragement and Protection of Merchant Seamen; 
 
 and herein, 
 
 1. Legal Provision for Seamen disabled in fight with Pirates and 
 
 Enemies ... ... ... ... ... ... ... 141 
 
 2. Corporation erected for the Relief of maimed and disabled Sea- 
 
 men, and of the Widows and Children of Seamen killed, 
 slain, or drowned in the Merchant Service, or who have con- 
 tributed to the Fund raised for that purpose 142 
 
 3. Provisions for preserving the health of Seamen, and for their 
 
 relief when falling Sick at Sea, or Hurt in performance of 
 their Duty 143 
 
 4. Regulations for the Protection of Seamen from imposition ... 144
 
 TABLE OF CONTENTS. XXI 
 
 SECTS. PAGE. 
 
 5. Offence of Master improperly discharging Mariners abroad, 
 
 forcing them on shore, or wrongfully leaving them behind ; 
 and provisions for the relief of Seamen abandoned, ship- 
 wrecked, captured, or cast away ... ... ... ... 145 
 
 6. Regulations for the Registration of Merchant Seamen .. . ... 145 
 
 CHAPTER VII. 
 Of Pilots. 
 
 1. Of Pilots generally 148 
 
 2. Of the Trinity House, and its Jurisdiction, and of the Cinque 
 
 Port Pilots 149 
 
 especting 
 
 ... 150 
 ... 155 
 ... 156 
 ... 158 
 
 8. Of the General Regulations of 17 & 18 Vict. c. 104, r 
 Pilotage Authorities and Pilotage 
 
 4. Of Compulsory Pilotage ... 
 
 5. What Vessels need not take a Pilot 
 
 6. Miscellaneous 
 
 7. Exemption of Owners and Masters from Liability .in case of 
 
 Damage by fault of Pilot ... ... ... ... ... 159 
 
 8. Pilotage of Foreign Ships ... ... ... ... ... 160 
 
 CHAPTER Vm. 
 Of the Conveyance of Passengers in Merchant Ships ; and herein, 
 
 1. Of the Rights and Duties of the Master and Passengers ... 161 
 
 2. Contracts for the Conveyance of Passengers, and Cases decided 
 
 upon them ... ... ... ... ... ... ... 162 
 
 B. Passengers Acts ... ... ... ... ... ... ... 166 
 
 4. Passenger Steamers ... ... ... ... ... •■• 169 
 
 5. Provisions for the Prevention of Misconduct and Accidents on 
 
 Passenger Ships ... ... ... ... ... ••• 169 
 
 PART IV. 
 
 OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS. 
 
 CHAPTER I. 
 Of the Contract of Affreightment hy Charter Party ; and herein, 
 
 1. Of the Instrument of Contract by Charter-party ... ... 175 
 
 2. Of the usual Contents thereof. — Stipulations as to Voyage, 
 
 Freight, Burthen of Ship, &c. 179
 
 XXll TABLE OF CONTENTS. 
 
 SECTS. PAGE. 
 
 3. Of Stipulations as to Time for providing and receiving Cargo ... 182 
 
 4. Construction of Charter-parties ... ... ... ... ... 183 
 
 6. Of Covenants in Charter-parties. — Conditions precedent ... 200 
 
 6. Evidence of Usage of Trade, when admitted in their intei-preta- 
 
 tion 210 
 
 7. Bills of Lading for Goods shipped under Charter-party . . . 214 
 
 CHAPTEE n. 
 
 Of the Shipowner's Lien for Freight; and herein, 
 
 1. Maritime and French Law on this subject ... ... ... 216 
 
 2. Of the clause in Charter-parties whereby the Merchant binds 
 
 the Goods 217 
 
 3. Of the Lien for Freight of the Owner of a Chartered Ship ... 221 
 
 4. Of Cases in which the Shipowner's Lien for Freight has been 
 
 held to have been Limited by him ... ... ... ... 231 
 
 5. Cases in which questions have arisen as to the Waiver or 
 
 Reservation by the Owner of his Lien ... ... ... 234 
 
 6. Eemarks on the Cases cited ... ... ... ... ... 236 
 
 7. Provisions of the M. S. Act Amendment Act and Customs Act 240 
 
 CHAPTER m. 
 Of Demurrage; and herein, 
 
 1. What Demurrage is 241 
 
 2. How Demurrage is to be computed ... 243 
 
 3. Construction of Stipulations respecting Demurrage 246 
 
 4. How Demurrage is regulated by Usage, m the absence of 
 
 express Stipulations 251 
 
 5. When Demui'rage ceases .. . ... ... ... ... ... 252 
 
 6. Remarks on Cases relating to Demun-age 253 
 
 CHAPTER IV. 
 
 Of the Contract for Conveyance of Merchandise in a General Ship ; and 
 
 herein, 
 
 1. The usual mode of entermg into this Contract; by what law 
 
 constnied ... ... ... ... ... ... ... 254 
 
 2. Of Bills of Lading — their form, signatui'e, and effect 256
 
 TABLE OF CONTENTS. XXlll 
 
 SECTS. PAGE. 
 
 3. To whom the Master and Owners are responsible on Bills of 
 
 Lading. — Cases of conditional Consignment, the condition 
 being unperformed, considered ... ... ... ... 261 
 
 4. Cases of conditional Consignment, the condition having been 
 
 performed ... ... ... 270 
 
 5. Of the effect of Bills of Lading transmitted as seciu-ity for 
 
 Advances, or to indemnify against Acceptances ... ... 271 
 
 6. Of Actions by Consignees, being only Agents of the Owners of 
 
 Goods 272 
 
 7. Assignment of Bill of Lading — effect of same ... ... ... 274 
 
 8. Remarks on Cases cited ... ... ... ... ... ... 277 
 
 9. Description of Goods in Bills of Lading ... ... ... 278 
 
 10. Admiralty Cases. — Consignors' or Enemies' Property ... ... 279 
 
 CHAPTEE Y. 
 Of the General Duties of the Master and Owners; and herein, 
 
 1. Of the Pi'eparation for the Voyage ... ... ... ... 281 
 
 2. Of the Commencement of the Voyage ... ... ... ... 297 
 
 8. Of the Com-se of the Voyage 306 
 
 4. The Master's Duty as respects the Cargo, in the course of the 
 
 Voyage 310 
 
 5. Of the Completion of the Voyage ... ... 317 
 
 CHAPTER VI. 
 
 Of the Causes which excuse the blaster and Owners ; and herein, 
 
 1. Acts of God 
 
 2. Perils of the Sea — Pirates — Collision 
 
 3. Lightning — Fne ... 
 
 4. Embezzlement, Ptobbcry, &c. 
 
 5. Neglect, &c., of Pilots 
 
 6. Restraint of Princes 
 
 CHAPTER Vn. 
 
 . 327 
 . 329 
 . 333 
 . 334 
 . 334 
 . 334 
 
 Of the Limitation of the Responsihility of the Owners and Master ; and 
 
 herein, 
 
 1. Of Foreign Laws and Ordinances on this Subject 338 
 
 2. Former enactments now repealed ... ... ... ••• 339
 
 Xxiv TABLE OF CONTENTS. 
 
 SECTS. PAGE. 
 
 3. Provisions in Merchant Shipping Acts ... ... ... ••• 341 
 
 4. Liability of Master and Seaman in those Capacities 312 
 
 CHAPTER VIII. 
 Of the General Duties of the Merchant ; and herein, 
 
 1. How he is bound to use the Ship •■• 343 
 
 2. Compensation to be made by him for not supplying Cargo . . . 344 
 
 3. Of Primage and Average 345 
 
 CHAPTER IX. 
 
 Of Payment of Freight ; and herein, 
 
 1. In the absence of express Stipulations, Freight not due until 
 
 the Voyage has been performed ... ... ... . • • 346 
 
 2. Modes of its Calculation. — Of an agreed Sum for the Voyage. — 
 
 Of Tonnage freight.— Of Time-freight 351 
 
 3. Time and Manner of its Payment. — Of the words " on paijment 
 
 of Freight"'' in Bills of Lading, and of then- Effect where 
 Delivery has been made without Pajnnent ... ... ... 354 
 
 4. When a Contract to pay Freight may be implied against the 
 
 Receiver of Goods imder the usual Bill of Lading ... ... 357 
 
 5. Equivalent Recompense in the Natm-e of Freight, to which 
 
 (Freight not having been earned) the Shipowner is in some 
 cases entitled ... ... ... ... ... ... ... 361 
 
 6. Freight on Illegal Voyages ... ... ... ... ... 362 
 
 7. "Whether Damaged Goods are exempt from Freight, or may be 
 
 abandoned for it ... ... ... ... ... ... 363 
 
 8. Of Freight when part of the goods only have been brought to 
 
 the place of their destination, and of Freight pro rata itineris 
 peracti ... ... ... ... ... ... ... , , . 368 
 
 9. "When the Right to Freight commences ... ,. ... ... 391 
 
 10. Of Entire, Divided, and Intermediate Voyages. — Freight how 
 
 payable 392 
 
 11. Of the Jurisdiction exercised by the Comt of Admu'alty respect- 
 
 ing the Freight of Goods condemned as Prize 398
 
 TABLE OF CONTENTS. XXV 
 
 CHAPTER X. 
 0/ Stoppage in Transitu; and herein, 
 
 3ECTS. PAGE 
 
 1. What it is 401 
 
 2. In what cases, generally, Goods may be stopped in transitu ... 404 
 
 3. Under what circumstances Goods are deemed to be in transitu 409 
 
 4. How the Right of Stopping in transitu is to be exercised ... 415 
 6. By what Acts the Right of the Vendor may be taken away ... 416 
 6. Of the Factors' Acts 426 
 
 CHAPTER XI. 
 
 Of the Dissolution of Contracts for the Carriarje of Goods in Merchant 
 Ships; and herein, 
 
 1. Of Dissolution by Mutual Consent ... ... ... ... 486 
 
 2. By Events rendering the Performance of the Contract illegal. — 
 
 Of War and Embargoes 437 
 
 8. Of Blockade of the Port of Departure ... ... ... ... 441 
 
 4. Of Blockade of the Port of Destination ... ... ..» .;. 442 
 
 5. Recent Decisions .. . ... .-. ... ... ... ... 448 
 
 PART V. 
 
 OF THE iUHlNG OF MERCHAIJT SEAMEN ; THE EMPLOYMENT OF SEAMEJI 
 BY THE MONTH, OR FOR THE VOYAGE ; THE EARNING AND PAYJIENT 
 OF WAGES ; THE LOSS AND FORFEITURE OF WAGES ; AND THE MODES 
 OF ENFORCING PAYJIENT OF THEM BY THE AID OF COURTS OF 
 JUSTICE. 
 
 CHAPTER I. 
 Of the Hiring of Seamen; and herein, 
 
 1. Of the Hii-ing of Seamen generally ... ... ... ■•• 451 
 
 2. Of Ships's Articles. — Regulations respecting them — of M. S. 
 
 Acts 452 
 
 3. Provisions for the protection of Seamen and the preservation of 
 
 their Health 457
 
 XXVI TABLE OF CONTENTS. 
 
 SECTS, PAGE 
 
 4. Verbal Agi'eement for "Wages not absolutely void ... ... 459 
 
 5. Seamen not entitled to increased Remuneration for extraordinary 
 
 Ser\^ce... ... ... ... ... ... ... ... 459 
 
 6. Provisions of 17 & 18 Vict. c. 104, for the licensing by the 
 
 Board of Trade of persons authorized to procure Seamen for 
 Merchant Ships ... ... ... ... ... ... 461 
 
 CHAPTER n. 
 
 Of the Earning and Payment of Warjes; and herein^ 
 
 1. "When the whole Wages are to be paid ... ... ... ... 463 
 
 2. Cases in which a part only is to be paid. — Service not wholly 
 
 performed by reason of Death, Shipwreck, or Abandonment 
 
 of the Voyage ... ... ... ... ... ... ... 464 
 
 3. The Time at which Payment is to be made ... ... ... 471 
 
 4. Advance and Allotment Notes. — Savings' Banks for Seamen . . . 474 
 
 5. Wages and Effects of deceased Seamen... ... ... ... 475 
 
 CHAPTER m. 
 Of the Loss and Forfeiture of Wages; and herein, 
 
 1. Wages generally not payable unless Voyage performed ... 477 
 
 2. Of the Wages payable in cases of Captm-e and Recapture ... 478 
 
 3. Of Forfeitm-e of W^ages by Desertion ... ... 481 
 
 4. Forfeitm-e for refusing to assist the Master in defending the Ship 
 
 against Pii'ates ... ... ... ... ... ... 487 
 
 5. In the case of Embezzlement by the Mariners 487 
 
 CHAPTER IN. 
 Of Proceedings to obtain the Payment of Wages; and herein. 
 
 1. Proceedings by Suit in the Court of Admiralty against the Ship 
 
 in Specie ... ... ... ... ... ... ... 489 
 
 2. By Action at Common Law against the Master or Owners ... 493 
 
 3. Under 17 & 18 Vict. c. 104, by Complaint on Oath to a 
 
 Magistrate 493 
 
 4. Master's Remedies for his Wages 494
 
 TABLE OP CONTENTS. XXVll 
 
 PART YI. 
 
 OP GENERAL AVERAGE, SALVAGE, COLLISION, AND MARITIME LIEN. 
 
 CHAPTEE I. 
 Of General or Gross Averar/e; and herein, 
 
 SECTS. PAGE 
 
 1. Of the Lex Rhoclia de Jactu, and the Regulations of Foreign 
 
 Ordinances respecting Jettison ... ... ... ... 497 
 
 2. Of the Losses for which Contribution by General Average shall 
 
 be made ... ... ... ... ... ... ... 503 
 
 8. Of Ship's Expenses in a Port of Refuge ... ... ... 608 
 
 4. Of Goods sold for the necessities of Ship and Cargo ... ... 516 
 
 5. Of the Expense of Wages and Maintenance of Crew, during 
 
 the detention of a Ship by order of a Sovereign Power ... 517 
 
 6. Of the Expense of Wages and Maintenance of Crew, while the 
 
 Ship is waiting for Convoy ... ... ... ... ... 518 
 
 7. Of the Expense of healing Mariners wounded in defence of the 
 
 Ship 619 
 
 8. Of Loss by ColUsion 620 
 
 9. Of the Jettison of Goods stowed on the Deck of the Ship ... 520 
 
 10. Remarks 624 
 
 11. What Articles are to contribute ... ... ... ... ... 527 
 
 12. Of the Mode of Contribution ... 628 
 
 13. How settled and recovered in the case of Dispute ... ... 630 
 
 CHAPTER n. 
 Of Salvage; and herein, 
 
 1 . Of Salvage generally ... ... ... ... ... ... 636 
 
 2. Of Salvage at Common Law ... ... ... ... ... 537 
 
 3. Of the Jurisdiction of the High Court of Admii-alty, and the 
 
 rates of Salvage awarded by it in cases of Salvage of Ships 
 
 in Distress at Sea, and of Derelict ... ... ... ... 539 
 
 4. Of Salvage by chartered Ship : Salvage Agreements ; Salvage 
 
 between Ships belonging to the same Owner, or engaged as 
 Consorts in the same Adventure ; Salvage by Persons em- 
 ployed to render other than Salvage ser\ice ; Salvage of 
 Ships damaged by Collision with the Ships of those claiming 
 from them Salvage remuneration; Salvage by licensed 
 Pilots 547
 
 XXviii TABLE OP CONTENTS. 
 
 SECTS. r-*^&= 
 
 5. Of Salvage by the Crews of the Royal Navy 550 
 
 6. Of the Apportionment of Salvage Reward among those engaged 
 
 in the Salvage Service ... ••• ••• ••• ••• 551 
 
 7. Of Salvage for Preservation of Life ... ••• 556 
 
 8. By whom and in respect of what interest Salvage is payable 557 
 
 9. Proceedmgs in Admiralty ... ... .•• ••• ••• 559 
 
 10. Appointment and Duties of Receivers, under 17 ».t 18 Vict. 
 
 c. 101 559 
 
 11. Of Salvage in the United Kingdom, 17 & 18 Yict. e. 104 ... 561 
 
 12. Of Salvage within the Jui-isdiction of the Cinque Ports ... 565 
 
 13. Of Salvage on Recapture 567 
 
 14. Of Salvage of Ships and ilerchandise found in possession of 
 
 Pii'ates 572 
 
 CHAPTER m. 
 Of Collision, 
 
 1. Of the Civil and Maritime Law respecting Collision 573 
 
 2. Law and Practice of the Court of Admu-alty. — Causes of 
 
 Collision 575 
 
 3. Enactments and Regulations as to Lights, &c 581 
 
 4. Law of England as Administered in Common Law Courts. — 
 
 iliscellaneous Cases ... ... ... ... ... ... 591 
 
 CHAPTER IV. 
 Of Maritime Liens ; and herein 
 
 1. Of the Definition and Nature of Maritime Liens i^. ... 594 
 
 2. Of the Ranking and Priority mfe»* se ... ..-. ... ... 595 
 
 3. Of Marshalling Assets for then* Protection ... ... ... 599 
 
 4. Of then- Dm-ation and Extinguishment ... ... ... ... 601 
 
 o. Of Procedm-e in Admiralty to enforce them ... ... ... 602 
 
 6. Maritime Law of Foreign States as to Priority of Liens, &c. ... 607 
 
 Appendix OF Statutes, FoBiis, &c. ... ;;i ... >.i ... 611 
 
 Index.
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Abemethy V. Landale ... 163, 477 
 
 Acatos r. Bums 311 
 
 Adams V. Royal Mail Steam Packet 
 
 Co 189, 212 
 
 Adamson r. Newcastle Ins. Ass. 
 
 441, 450 
 Adderly v. Cookson 
 Addison i'. Overend 
 African Steam Ship 
 
 ■v. Swanzey 
 Aitchinson v. Lohre 
 Aitken i: Bedwell ... 
 Akerman v. Humplirey 
 Alcock i: Royal Exchange Ass. Co. 5 
 
 Alers f. Tobin 317 
 
 Alexander r. Do^-ie ... 21, 253 
 
 r. Duke of Wellington 17 
 
 V. Simms 23 
 
 Allen V. Gripper 409 
 
 V. Sugrue 8 
 
 Alleson r. Mursh . . . 
 Allison V. Bristol 3Inr 
 
 163 
 
 69 
 
 Company 
 
 ... 340 
 535, 537, 559 
 
 124 
 
 420 
 
 P.' 
 
 Ins 
 
 ... 490 
 Co. 
 350, 380 
 Alsager r. St. Katherine's Dock 
 
 Co 234,354 
 
 Alston Ex }) 431 
 
 Amer Ins. Co. v. Ogden 9 
 
 Amery r. Rogers 56 
 
 Amies v. Stevens 333 
 
 Amos V. Temperley 359 
 
 Anderson v. Clarke 271 
 
 V. Hillies 357 
 
 r. Owners of San Roman 335 
 
 i: Pitcher 185, 211, 301 
 
 V. Wallis 9 
 
 Andrew v. Moorhouse 348 
 
 Andrews V. Glover ... 16,311 
 
 Anglo- African Co. v. Lamzed 
 Anglo-Egyptian &c. Co. i-. Rennie 
 Anon ... 60, 465, 467, 490, 
 
 Appleby r. Dods 
 
 V. Pollock 
 
 Appleton V. Lord Braybrooke 
 
 Arkle r. Henzell 47, 
 
 Armstrong v. Armstrong 
 
 V. Smith 
 
 Artaza v. Smallpiece 
 
 Arthur v. Barton 
 
 Ashcroft V. Crow, &c. Co 
 
 Asseviedo v. Cambridge 
 
 Atkinson r. Bell 2, 
 
 r. Cotesworth 
 
 v. Malin ... 
 
 V. Ritchie 
 
 V. Stephens 
 
 V. WoodhaU 
 
 Att.-Gen. t'. Case ... 
 
 Attwood V. Case 
 
 ■ V. SeUar . . . 
 
 .. 337, 
 311, 317, 
 
 159, 
 144, 462, 
 .. 501, 
 
 Atty V. Parish 
 Audley v. Divff 
 Avery v. Bowden 
 Austin V. Olsen 
 
 692, 
 
 \GE 
 286 
 2 
 491 
 465 
 417 
 325 
 645 
 
 45 
 469 
 359 
 
 97 
 189 
 
 17 
 735 
 357 
 
 o 
 •J 
 
 450 
 340 
 564 
 160 
 687 
 509 
 176 
 300 
 448 
 750 
 
 B. 
 
 Backhouse V. Ripley ... 520,524 
 
 Baillie v. MoudigHani ... 368, 376 
 
 Baker r. Buckle 21 
 
 V. Gray 2 
 
 Bally r. De la Arroyave ... 185, 244 
 Banda and Kirwee Booty, i?e ... 569 
 Barber r. Meyerstein ... 261, 275 
 
 r. Wharton 491 
 
 Barclay r. Hardy 198 
 
 Baring r. Claggett viii
 
 XXX 
 
 TABLE OF CASES. 
 
 Baring v. Come . . . 
 
 V. Day 
 
 Barker v. Haven . . . 
 
 V. Highley . . . 
 
 r. Hodgson 248, 249, 438, 
 
 r. M' Andrew 184, 250 
 
 Barnardistoii v. Chapman 
 Barr v. Gil^son 
 
 Barrett r. Button 249, 
 
 Barrick v. Buba . . . 
 Barrow Ex j). Be Worsdell 
 
 V. Coles 
 
 Barson v. Wolliford 
 Bartram v. Farehrotlier 
 Basten v. Butter . . . 
 
 Bastifell v. Lloyd 244, 
 
 Bates r. Todd 
 Battersby v. Gale ... 
 Baxter v. Eeader . . . 
 Bay ley v. Grant . . . 
 Beadnell v. Beeson 
 Beale v. Thompson 134, 347, 354 
 
 471 
 
 Beatson r. Haworth 
 
 r. Shank 
 
 PAGE 
 
 428 
 537 
 360 
 
 62 
 439 
 334 
 
 60 
 
 14 
 250 
 448 
 410 
 422 
 330 
 404 
 363 
 249 
 260 
 2 
 539 
 490 
 856 
 464 
 480 
 308 
 181 
 249 
 , 208 
 154 
 236 
 
 99 
 
 637 
 
 46, 50 
 
 450 
 
 62 
 359 
 198 
 236 
 159 
 
 Beech v. Balleras 
 
 Behn v. Burness 206 
 
 Beilby V. Scott 
 
 Belcher v. Capper ... 33, 220, 228, 
 
 Beldon r. Campbell 
 
 Bell v. Bank of London 44, 50, 
 
 r. Blyth 
 
 r. Gilson 
 
 V. Hmuphries 
 
 V. Keymer 
 
 V. Puller 
 
 Belshaw v. Bush ... 
 Bennett ^'. Moita ... 
 
 V. Perdnsular Steam Boat 
 
 Co 161 
 
 Bensv. Parre 490, 492 
 
 Benson r. Blunt 250 
 
 r. Chapman 11, 94, 120, 400 
 
 r. Duncan 120,517 
 
 r. Schneider ... ... 211 
 
 Benzen r. Jefferies... ... ... 115 
 
 Bergstrom r. Mills 371,478 
 
 Berkeley r. T^'atling 260 
 
 Berkley r. Presgrave 503, 506, 528, 533 
 
 Bernal r. Pim 234 
 
 Bernardi'r. Motteux vw. 
 
 PAGE 
 Berndston r. Strang ... 410,430 
 
 Bessy V.Evans 249 
 
 Best r. Saunders 345- 
 
 Bever f. Tomlinson ... ... 330 
 
 Biddlecomb r. Bond 401 
 
 Bilsonr. Crofts 401 
 
 Bingham f. Garnault 127 
 
 Birdr. Astock 502 
 
 v. BroAvn 415 
 
 Birleyv. Gladstone 218 
 
 Bishop V. Ware 317,322 
 
 Black r. Lord Braybrooke . . . 325 
 
 Blacket ^'. Ansley 59 
 
 Blackburn v. Gregson 402 
 
 Blackie r. Stembridge 287 
 
 Blakey V. Dickson 347 
 
 Blanchard, Baxter and others, Ex f. 4 
 Blanchet v. PoweH's, &c., Co. ... 261 
 
 Blanckv. Solly 362 
 
 Bland, ex ^....' 100 
 
 Blandyr. Allan 428 
 
 Blasco v. Fletcher 311 
 
 BHghtv. Booth 180 
 
 V. Page ... 249, 438, 439 
 
 Bloxam v. Sanders 
 Bloxham v. Hubbard 
 Bohtlingk v. Inglis 
 
 262, 274, 405 
 48 
 
 222, 403, 410 
 415 
 Bolton V. Lancashii-e and Yorkshii'e 
 
 Ry. Co 
 
 Boone v. Eyre 
 Bornman v. Tooke... 
 Boson V. Sandford... 
 Bottomley v. Forbes 
 Boucher v. Lawson 
 
 r. Nordstrom 
 
 Bourne v. Gatliff ... 
 
 Boutflower v. Wilmer 
 Bovill V. Hammond 
 Bow en v. Fox 
 Bowker v. Hodgson 
 Bowman v. Manzelmau 
 
 Boyce r. Att.-Gen 
 
 V. Bayliflfe ... 
 
 V. Cole 
 
 Boyd r. Mangles 
 
 Boyfield v. Brown ... 
 Boyson v. Gibson ... 
 Bradford f. Williams 
 Bradhurst v. Colombian Ins. Co. 
 Bradley r. Dunipace 
 
 412 
 
 201 
 
 184, 189, 207 
 ... 60,84,86 
 
 213 
 
 86 
 
 159 
 
 325 
 
 138 
 
 68 
 
 47, 48 
 
 450 
 
 493 
 
 96 
 
 ... 161, 162 
 364 
 
 61, 65 
 
 363 
 
 49 
 
 200 
 
 502 
 259
 
 TABLE OP CASES 
 
 XXXI 
 
 Brandon v. Curling 
 Brandt v. Bowlby . . . 
 Branker v. Molyneux 
 Brass v. Maitland . . . 
 Breed v. Ship Venus 
 Brenan v. Preston . . . 
 Brereton v. Chapman 
 Brewster v. Clarke... 
 Bridge v. Grand Junction Ky 
 Bridgman's case 
 Briggs V. Wilkinson 
 
 Bright V. Cowper 
 
 Brisbane v. Dacres ... 
 BristoAv V. "^^Iiitmore 
 British Columbia, &c., Co. 
 
 tleship 
 Brockbank v. Anderson . . 
 Brodie v. Howard ... 21 
 
 Broomfield r. Southern Ins 
 Brouncker v. Scott... 
 Brown v. Benn 
 
 V. Bradford 
 
 V. Byrne 
 
 V. Hare 
 
 V. Hodgson... 
 
 V. Johnson . . . 
 
 V. Mallett ... 
 
 V. North 
 
 r~ V. Powell, &c. Co. Lim 
 
 V. Stapylton 
 
 V. Tanner ... 
 
 V. Tapsco . . . 
 
 V. Tayleur . . . 
 
 V. WUkinson 
 
 BroT\Tie V. Burton . . . 
 Bruce v. Nicolopulo 
 
 ^■. Wait 
 
 Bryans v. Nix 
 Buck V. Atwood 
 
 V. Eawlinson . . . 
 
 Buckle V. Knoop ... 
 Buckley v. Barber . . . 
 Bu5"ins V. Bennett 
 
 "■no 
 
 Buller V. Fisher 
 
 Bunney ^•. Pointz ... 
 
 Burghall (Assignees of) r. Howard 404 
 
 Burgon V. Sharpe 89 
 
 Burk t'. Fearon 121 
 
 Burmester v. Hodgson . . . 249, 252 
 
 Burns i;. Chapman 494, 674 
 
 Burrow's case 467 
 
 Co. 
 
 PAGE 
 
 . 440 
 
 . 262 
 
 . 24 
 
 . 343 
 
 . 91 
 
 . 687 
 
 . 243 
 
 . 43 
 
 591 
 
 ... 115 
 
 23, 70 
 
 379, 392 
 
 ... 368 
 
 ... 102 
 
 Net- 
 
 ... 254 
 
 ... 312 
 
 , 62, 70, 92 
 
 Co. ... 105 
 
 242, 258 
 
 ... 491 
 
 ... 70 
 
 210, 213 
 
 ... 276 
 
 262 
 244 
 593 
 
 24 
 261 
 527 
 346 
 
 63 
 206 
 340 
 200 
 83, 250, 334 
 272 
 271 
 492 
 465 
 351 
 
 57 
 492 
 330, 520, 592 
 412 
 
 182, 243, 
 316, 
 
 23, 
 
 Burton v. Pinkerton 
 Busk V. Fearon 
 Butler V. WUdman... 
 v. Woolcot ... 
 
 PAGE 
 
 ... 471 
 
 ... 106 
 
 506, 224 
 
 ... 408 
 
 ... 591 
 
 Butt erfi eld v. Forrester . . . 
 
 Button V. Thompson 134, 465, 467 
 
 471, 481, 482, 492 
 
 Buxton V. Snee 93,100 
 
 Byrne v. Pattinson 394 
 
 u SchiUer 349,527 
 
 Caldwellr. Ball ... 
 Cambridge v. Anderton 
 Camden v. Anderson 
 Cammell v. Sewell... 
 Campbell v. Jones . . . 
 
 V. Stein ... 
 
 V. Tliompson 
 
 Campion v. Colvin... 
 Cannan v. Maeburn 
 Capper v. Foster . . . 
 
 V. Wallace . . . 
 
 Card V. Hope 
 Carr v. Jackson 
 Carruthers v. Payne 
 
 V. Sydebotham 
 
 Carters. Hall 
 
 418 
 
 ...8, 14, 500 
 
 43 
 
 viii, 100, 311 
 
 204 
 
 62 
 
 48, 317 
 227, 230, 259 
 ... 314, 341 
 ... 191, 351 
 
 322 
 
 62 
 
 ... 176, 178 
 
 2 
 
 ... 159, 160 
 
 460 
 
 2, 
 49o! 
 
 Cary v. White 
 Case, Bridgman's ... 
 • Burrow's 
 
 Cradock's 
 
 Kidd's, Captain 
 
 Lethulier's ... 
 
 Mariner's 
 
 Mouse's 
 
 Castelli v. Cook 
 Castle V. Duke 
 Castifell v. Lloyd ... 
 Castrique v. Imrie . . . 
 Catley v. Wintringham 
 Cato V. Irving 
 Cattlin V. Hills 
 Cawthron v. Trickett 
 
 Cazalet V. St. Barbe 
 
 Caze V. Eeilly 
 
 Cazenove v. Clayton 
 
 Chadwick v. City of Dublin Steam 
 
 Packet Co. 
 
 Chalacombe, ex 2^ 
 
 94 
 
 115 
 
 467 
 
 101 
 
 127 
 
 299 
 
 . 492 
 
 ... 502 
 
 61, 103 
 
 ... 90 
 ... 190 
 
 , 100, 607 
 ... 325 
 
 24, 43, 45 
 ... 592 
 70, 242 
 ... 11 
 ... 502 
 ... 47 
 
 578 
 467
 
 xxxii 
 
 TABLE OF CASKS. 
 
 V 
 
 Clumdlerc. Grieves 
 
 < V. Mead 
 
 Chancy r. Payne , . 
 
 Chapman v. Collis 
 
 -■ r. Eoyal Netherlands 
 
 Stm. Ship. Co 
 
 v. Williams 
 
 Chappell i: Bray 
 
 V. Comfort 
 
 Charleton v. Cotesworth 
 
 Chartered Bk. of India v. Hender- 
 son 
 
 Chase r. Westmoro... 
 
 Chavasse, cc j? 
 
 Cheeseman, ex- ^, 
 
 Child, i?e 
 
 Chiiineryv. Blackburne 
 
 Christian r. Ditchell 
 
 Christie, exj}- 
 
 1'. Craig 
 
 . r. Lewis ... 
 
 ... 221, 
 313, 353, 
 
 Christoffersen v. Hansen 
 Christy v. Row 
 
 Churchward V. Palmer 
 
 City of Dublin, Steam Packet Co. 
 
 V. Thompson 
 
 Clark r. Driusiua ... 
 
 Clarke v. Spence 
 
 Clay i7. Harrison 
 
 v. Sudgrave or Snellgrave . . . 
 
 Clayards v. Dethick 
 
 Clements r. Mayborn 
 
 Cliftbrd V, Hunter 9, 
 
 CUpsham v. Yertue 200, 202, 
 
 Close r. Holmes 
 
 Closmadeuc v. Carrel 
 
 Clutterbuck v. Coffin 
 
 Co. of African Merchants v. British, 
 
 &c., Co 
 
 Coates V. Railton 409, 
 
 Coats r. Chaplin 
 
 Cobban v. Downe ... 
 Cochran r. Fisher ... 
 
 ■ r. Irlam 
 
 V. Retbergh 
 
 Cock, i?e 
 
 V. Taylor 
 
 Cockburn r, Alexander 
 
 Coggs V. Bernard . . . 
 Cohen v. Davidson... 
 
 185, 193, 
 210, 214, 
 
 AGE 
 
 462 
 
 478 
 155 
 
 48 
 
 858 
 606 
 62 
 242 
 345 
 
 419 
 
 234 
 
 444 
 
 236 
 
 234 
 
 23 
 
 299 
 
 70 
 
 61 
 
 226 
 
 179 
 
 355 
 
 581 
 
 641 
 348 
 2 
 405 
 495 
 591 
 467 
 285 
 207 
 429 
 175 
 461 
 
 306 
 411 
 262 
 285 
 206 
 426 
 243 
 410 
 359 
 194 
 352 
 283 
 281 
 
 PAGK 
 
 Cohen iJ. Hinckley.., 303 
 
 Colby r. Watson 541 
 
 Colchester (Jklayor of) r. Brooke ... 591 
 
 Cole 1'. Meek 196 
 
 V. K W. Bk. Lim 432 
 
 Coleman r. Lambert 262, 274, 358 
 
 Colequid Mar, Ins. Co, v. Borteaiix 6 
 
 CoUen t". Wright 178 
 
 Collins r. Lamport , 23 
 
 Commercial Steamsliip Co. v. 
 
 Boulton 243 
 
 Connor t), Smythe 253 
 
 Conservators of the River Thames 
 
 V. Hull 721 
 
 Constable f. Cloberie ... 189,207 
 Cook V. Jennings ... ... ... 377 
 
 Cookling V. Massey 180 
 
 Cooper v. South' 56 
 
 Cope V. Doherty 341 
 
 Corbin r. Leader 162 
 
 Cormack v. Gladstone 309 
 
 Corset -y. Huselj' ... ... ... 115 
 
 Cote, 6.^;^; 409 
 
 Couch V. SteeJ ... 143, 282, 459 
 
 Coulthurst r. Sweet 63 
 
 Covas 1'. Bingham 193 
 
 Coventry v. Gladstone 269, 409, 431 
 Co-\dngton v. Roberts ... ... 507 
 
 Cowasjee v. Thompson ... ... 413 
 
 Cow ell r. Simpson... ... ... 234 
 
 Cox r. May 532, 558 
 
 Coxe V. Harden 270, 272, 413, 423 
 
 Cradock's case ... ... ... 101 
 
 Craigie v. Ogilvey 98 
 
 Cranston -;;. Marshall 164, 184, 204, 
 
 207, 255 
 Craven v. Ryder 257, 286, 413, 414 
 
 Crawshay v. Eades 413 
 
 r. Homfry 234 
 
 V. Thornton 425 
 
 Cremidi r. Powell 442 
 
 Croockewit r. Fletcher ... 205,207 
 Crookes v. Allen 261, 528, 532, 533 
 
 Cropton V. Pickernell 242 
 
 Crow V. Falk 183, 334 
 
 Crozier v. Smith 200, 347, 372, 397, 
 
 .398 
 
 Cullenr. Butler 331 
 
 Cuming r. Brown 422 
 
 Cunningham i'. Dunn ... ... 337 
 
 Ciu-ling r. Long ... 347, 392, 478
 
 TABLE OF CASES. 
 
 XXXlll 
 
 Curling v. Robei'tson' 
 Curtis V. Perrj' 
 Cuthbert v. Cumming 
 Cutter V. Powell ... 
 
 TAGE 
 
 21 
 
 43, 45 
 210, 212, 214 
 469 
 
 Czech V. Gen. Steam Nav. Co. ... 261 
 
 D. 
 
 Da Costa V. Edmunds ... 524, 525 
 
 V. Newnham 508, 509, 512 
 
 518 
 
 Dafter 17. Cress well... 460 
 
 D'Aguila t'. Lambert 401 
 
 DakinuOxley 36.3 
 
 Dale V. Hall 316 
 
 Dalgleish v. Hodgson 443 
 
 Danube and Black Sea Railway Co. 
 
 V. Xenos ... ... ... ... 448 
 
 Darby v. Baines ... ... 61,62 
 
 • .V.Newton 305 
 
 Davidson v. Gwynne 184, 200, 202 
 
 210, 215, 316, 364 
 
 Davies r. McVeagb.., 244 
 
 Davis V. Garratt 187, 307 
 
 V.James ... ... ... 272 
 
 V. Johnstone 61 
 
 ■ V.Mann 591 
 
 V.Reynolds 414 
 
 Dawes V. Peck 262 
 
 Day V. Serle 492 
 
 Dean V. Hogg 33 
 
 D'Eguino V. Bewicke 300 
 
 Deffell V. Brockelbank 204 
 
 De Garay v. Clagget ... ... 300 
 
 De Grave V. Hedges ... ... 59 
 
 Delamainer v. Winteringham . . . 478 
 
 De Mattos V. Gibson 24 
 
 Dennis V. Tovell 593 
 
 Dent V.Smith ... 507,511,534 
 De Rothschild v. The Royal Mail 
 
 Steam Packet Co 334 
 
 De Silvale V. Kendall ... 348,349 
 Deslandes V. Gregory ... 177, 178 
 De Vaux V. Salvador ... ... 575 
 
 Dewell V. Moxon 89 
 
 Dick V. Lumsden 423 
 
 Dickinson V. Jardine ... ... 535 
 
 Digby V. Raine ... ... ... 470 
 
 Dimeck V. Corbett 207 
 
 Dimmock v. Chandler 59 
 
 Diplock V. Blackburn 
 Dixon V. Baldwin ... 
 
 V. Ewart 
 
 V. Reid 
 
 V. Sadler 
 
 V. Whitworth 
 
 PAGE 
 
 ... 123 
 
 409, 411 
 
 ... 48 
 
 ... 137 
 
 282, 285 
 
 ... 558 
 
 V. Yates 2, 401, 412, 413, 414 
 
 Dobree v. Schroder... 
 Dobsou V. Droop ... 
 
 V. Lyall 
 
 V. Went worth 
 
 V. Wilson . . . 
 
 Dockwray v. Dickenson 
 Doddington v. Hallet 
 Dodge V. Bartol 
 Domett V. Beckford 
 Donaldson v. Foster 
 V. Thompson 
 
 Dougal V. Kemble ... 
 
 Do uglass V. Russell 
 
 Dowumanv. Jones... 
 
 V, Williams 
 
 Doyle V. Dallas 
 
 Dracachi v. Anglo-Egyptian Nav, 
 
 Co. 275 
 
 Drew V. Bird 
 
 Dry V. Boswell 
 
 Duckett V. Sallerfield 
 
 Dudgeon v. Pembroke 
 Duke of St. Alban v. Shore 
 Dunbar V. Smaithwaite 
 Duncan v. Benson . . . 
 V. Koster ... 
 
 340, 341 
 
 248, 253 
 
 115, 116 
 
 ... 409 
 
 517, 533 
 
 ... 69 
 
 ... 65 
 
 ... 523 
 
 356, 359 
 
 ... 211 
 
 ... 18 
 
 358, 360 
 
 ... 49 
 
 177 
 177 
 8, 9 
 
 V. M'Calmont 
 
 V. Tindal ... 
 
 Dunlop V. Lambert 
 Dunnage v. Joliffe . . . 
 Duranty v. Hart 
 Duthie V. Hilton ... 
 Duttou V. Powles ... 
 V. Solomonson 
 
 E. 
 
 Eaken v. Thorn 
 Earle v. Rowcroft ... 
 Edwards v. Brewer... 
 
 V. Child ... 
 
 V. Havill... 
 
 416 
 358 
 451 
 196 
 707 
 204 
 
 282 
 
 .. 9, 93, 317 
 182, 307, 308 
 337, 437 
 ... 103, 116 
 43,45 
 ... 262, 272 
 
 325 
 
 311 
 
 346 
 
 256 
 
 262 
 
 459, 464 
 
 ... 137 
 
 405, 408 
 
 465, 466 
 
 ... 97
 
 XXXIV 
 
 TAILE OF CASES. 
 
 EdwarcU r. Trevellick 
 Edwin V. East India Co. 
 Elkins V. East India Co. 
 Ellersliaw v. Maguiac 
 Elliott V. Von Glehn 
 Ellis r. Hunt 
 
 V. Pearce 
 
 r. Turner 
 
 Elsworth V. "Woolmore 
 Elton r. Brogden ... 
 England v. Davison 
 Erichsen v. Barkwortli 
 Esposito V. Bowden 
 Esseiy v. Cobb 
 European, &c., Mail Co. 
 Mail Steam Packet Co. 
 Evans v. Foster 
 
 V. Hutton ... 
 
 V. Martlett ... 
 
 V. Niclioll ... 
 
 V. Trueman... 
 
 V. Williams... 
 
 Everard v. Kendall 
 Everett v. Collins ... 
 Everth v. Hannam ... 
 Ewbank v. Nutting 
 
 Fairbridge v. Pace ... 
 Faith V. East India Co. 
 
 PAGE 
 
 .. 132, 133 
 
 3-14 
 
 6 
 
 266 
 
 205 
 
 ,.. 411, 415 
 
 168 
 
 87 
 
 459 
 
 137 
 
 460 
 
 ... 246, 250 
 437, 449, 450 
 
 90 
 
 ?•. Eoyal 
 
 \.. 24 
 ... 242, 258 
 
 437 
 
 ... 273, 417 
 
 271 
 
 428 
 
 93 
 
 880 
 
 356 
 
 137 
 
 311 
 
 218, 227, 
 233, 
 
 Falkner 
 
 Earle 
 Ritcliie 
 
 Fanny M. Carvill (Owners of) t 
 
 Peru (0^^^lers of ) 
 Farmer v. Davies ... 
 Farnwortli v. Hyde 
 
 Fearon v. Bowers 
 
 Featherston v. Wilkinson ... 
 
 Feltham v. Clarke 
 
 Fenton v. Dublin Steam Packet 
 
 Co. ... ... ... 35, 
 
 r. Pearson ... 
 
 Fenwick r. Boyd ... 
 r. Schmalz 
 
 Ferguson, ex par/e ... 633,730, 
 
 Fiese v. Wray 405, 
 
 Fitch V. Sutton 
 
 Fletcher v. Alexander . . . 529, 
 r. Braddick ... 35, 
 
 183 
 230 
 236 
 214 
 9 
 
 895 
 ,90 
 
 8 
 425 
 200 
 
 4 
 
 122 
 405 
 183 
 249 
 652 
 408 
 71 
 533 
 122 
 
 Fletcher v. Gillespie 
 
 r. Heath ... 
 
 r. Inglis 
 
 Flower v. Bradley ... 
 
 V. Young . . . 
 
 Follett V. Delany . . . 
 Ford V. Coiesworth 
 Forshaw v. Chabert 
 Forward v. Pittard... 
 Foster v. Colby 
 
 V. Frampton 
 
 Fothergill v. Walton 
 Fowler v. Knoop . . . 
 
 PAGE 
 
 286 
 
 ... 428, 429 
 
 332 
 
 880 
 
 56 
 
 ... 43,45,56 
 
 249 
 
 284 
 
 ... 327, 333 
 232, 234, 275 
 ... 409, 411 
 
 204 
 
 243 
 
 r. Kymer or M'Taggart ... 220 
 222, 410 
 
 Fox, ex])arte 
 
 V. Nott 
 
 Fragano v. Long 
 Frages v. Worms . . 
 Francesco v. Massey 
 Franklin v. Hosier . . 
 
 V. Neate .. 
 
 Fraser v. Hatton . . 
 
 V. Hopkins .. 
 
 467 
 
 276 
 
 262 
 
 527 
 
 179 
 
 100 
 
 273 
 
 452, 454, 460 
 472, 668 
 
 56 
 
 V. Telegraph, &;c., Co. ... 259 
 
 Frazer v. Marsh ... 21, 22, 27, 220 
 Freeman v. East India Co. ... 313 
 
 V. Tavlor . 
 
 French v. Backhouse 
 
 r. Gerber ... 
 
 V. Newgrass 
 
 Frontine r. Frost ... 
 Frost V, Oliver 
 Fuentes r. Montis ... 
 Furnell r. Thomas... 
 Furtado r.Rodgers ... 
 
 G. 
 
 Gabarrow v. Kreeft . . . 
 Gale V. Laurie 
 Gamba v. Le Mesurier 
 Gardener v. Cazennve 
 Gardner v. M'Cutcheon 
 
 V. Salvador 
 
 Garnara v. Bennett 
 Gatlitf -u. Bourne ... 
 Gaudet v. Brown . . . 
 Geinar v. Meyer 
 Geipel r. Smith 
 
 187, 207, 307 
 
 62 
 
 178 
 
 205 
 
 484 
 
 ... 21,70,92 
 
 432 
 
 250 
 
 ... 440, 450 
 
 266, 
 
 267, 
 
 411 
 
 
 4, 
 
 341 
 440 
 23 
 123 
 6,8 
 
 
 90, 93 
 
 
 
 325 
 
 
 
 886 
 
 
 
 473 
 
 
 337, 
 
 450
 
 TABLE OF CASES. 
 
 XXXV 
 
 Gen, Screw Collier Co. 
 
 manns 
 
 Steam Nav, Co., i 
 
 &c., Co 
 
 V. Guilloii 
 
 V. Maun . . . 
 
 V. ^lorrison 
 
 V. Sapper 
 
 V. Slipper 
 
 r. Tonkin 
 
 Gether v. Capper . . . 
 Gibbon V. Mendez . . . 
 
 V. Young ... 
 
 Gibbons v. Du Buisson 
 Gibbs, ex parte 
 
 V. Grey 
 
 V. Potter 
 
 Gibson v. Carrutliers 
 
 V. Ingo 
 
 V. Sturge ... 
 
 Gilbert v. Guingon... 
 Gilkison v. Middleton 
 Gillan v. Simpkin . . . 
 Gist V. Mason 
 Gladstone v. Birley . . . 
 
 V. King ... 
 
 Glaholm v. Barker 
 Glaholme v. Hayes... 
 Glascott V. Lang ... 
 Gleadon v. Tinkler... 
 Gledstanes v. Allen 
 Glover v. Black 
 Glynn v. E. & W. I. Doik 
 Gotf u Clinkard ... 
 Goldschniidt v. Whitniore 
 Goode V. Langley ... 
 Goodliart v. Lowe . . . 
 Gordon v. Morley ... 
 Gore V. Gardiner . . . 
 Goslincj V. Birnie ... 
 
 r.VGE 
 V. Sclmr- 
 
 3-11 
 
 '. British, 
 ... 718, 721 
 
 576 
 
 581 
 
 581 
 
 206 
 
 190 
 
 588 
 
 357 
 
 398 
 
 177 
 
 244 
 
 412 
 
 311 
 
 ... 334, 745 
 
 401 
 
 645 
 
 351 
 
 ... 420, 425 
 
 231, 232, 287 
 
 163 
 
 4-50 
 
 218 
 
 124 
 
 746, 748, 858 
 ... 205, 207 
 ,.. 107, 116 
 
 92 
 
 233 
 
 ,.. 106, 121 
 275 
 
 Co. 
 
 286 
 137 
 
 Goss V. Quinton 
 
 v. Withers 
 
 Gould v. Oliver 
 Govett V. Bad nidge 
 Graham v. Barras . . 
 
 V. Dyster .. 
 
 Granger r. Dent . . 
 Grant v. Norway .. 
 . Lc'"'" 
 V. Sawcer .. 
 
 213, 
 
 401 
 
 299 
 
 110, 114, 115 
 
 271 
 
 327 
 
 .. 2, 3, 44 
 
 17, 20 
 
 523, 524, 525 
 
 70 
 
 206 
 
 426 
 
 209 
 
 89, 260 
 
 211 
 
 60 
 
 PAGE 
 
 Gray V. Carr ...218, 234, 242, 259 
 
 V. Wain 502 
 
 Greely t-. Tremont Ins. Co. ... 501 
 
 Green v. Briggs ... 62, 64, 68, 114 
 
 V. Kopke ... ... ... 177 
 
 i: Eoyal Ex. Ass. Co. ... 8 
 
 Greenland f. Chaplin 591 
 
 Greer V. Poole ... ... ... 535 
 
 Gv'MAe, ex 'parte ... ... 43,70 
 
 Grice r. Richardson ... ... 410 
 
 Giitiith f. In,:.;ledew 274 
 
 Grithths r. Hicks 63 
 
 Grill v. Gen. Iron Screw Collier 
 
 Co. 138, 332, 333 
 
 Griswold v. The New York Ins. Co. 367 
 
 V. Johnson 
 
 450 
 
 Guion V. Trask 
 
 63,65 
 
 Gunn V. Roberts . . . 
 
 97 
 
 Gurney v. Behrend 
 
 263, 267, 269 
 
 
 275, 420 
 
 GM'illini V. Daniel ... 
 
 180 
 
 H. 
 
 Hackwood r. Lyall... 
 Hadgraft v. Hewith 
 Hadley v. Clarke . . . 
 Hagedorn v. Whitmore 
 
 Haille v. Smith 
 Halkett, ex parte . . 
 Hall V. Cazenove ... 
 
 I'. Janson 
 
 Hallett V. Bousfield 
 V. Wiirram... 
 
 271, 274, 406, 
 ... 101, 
 
 184, 189, 202, 
 ... 508, 
 
 94, 317, 
 511, 
 
 Halsey V. Albertiiszen 
 Haly v. Goodson ... 
 Hamlett v. Richardson 
 Hammond v. Anderson . . . 
 
 V. M'Crie 
 
 V. Rogers 
 
 Hancock v. York, &c., R. Co. 
 Handy.side v. Wilson 
 Hannaford v. Hunn 
 Hanson v. Meyer ... 
 
 v. Royden 
 
 Hare v. Dresser 
 
 Harman v. Anderson 
 
 V. Clarke .. 
 
 412, 
 159, 
 
 578, 
 
 412, 
 76, 
 
 V. Gandolphi 
 
 242, 249, 
 ... 242, 
 
 21 
 718 
 439 
 332 
 420 
 113 
 205 
 511 
 533 
 508 
 517 
 548 
 
 61 
 368 
 413 
 323 
 160 
 593 
 591 
 124 
 414 
 460 
 416 
 413 
 258 
 248
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Harman v. Mant . . . 
 Harmer v. Bell 
 Harmond v. Pearson 
 Harriet v. Wise 
 Harrington v. Fry ... 
 Harris v. Carter 
 : r. Dreesnian 
 
 u: 
 
 PAGE 
 242, 249, 258 
 577, 598, 601 
 
 593 
 
 441 
 
 21 
 
 460 
 
 189 
 
 Owners of Franconia ... 7£1 
 Scaramanga 517, 534, 535 
 
 V. Watson ... 
 
 Harrison, ex parte ... 
 
 V. Bank of Australia 
 
 V. Douglas 
 
 V. Jackson 
 
 r. Spaeth 
 
 V.Wright 
 
 Harrower r. Hutchinson ... 
 Hartford v. Jones ... 
 Hartley v. Ponsonby 
 H asw ell t'. Hunt ... 
 Hathesing V. Laing 
 
 Hat^ellr. Griffith 
 
 Havelock v. Geddes 
 
 V. Eockwood 
 
 Hawes v. Watson . . . 
 
 Hay r. Fair bairn ... 
 
 Haye v. Le Neve ... 
 
 Hayman v. Moulton 
 
 Hayn, Eoman, & Co. 
 
 Haynes v. Halliday 
 
 Hayton v. Jackson . . , 
 
 Hawkins v. Twizzell 
 
 Heath r. Hubbard . . . 
 
 Heathorn v. Darling 
 
 Helley v. Grant 
 
 Helme v. Smith 
 
 Henderson v. The Comi-)t(-ir D'Es 
 compte de Paris 
 
 Hendricks v. Australasian Ins. Co. 
 
 Henekey v. Eiide ... 
 
 Henry r. Trinity House of New- 
 castle 
 
 Hernamann r. Bawden 
 
 Heyman v. Fle\vker 
 
 Hibbert v. Carter ... 
 
 V. Pigou 
 
 Hicks r. Palington... 
 
 V. Shield ... 
 
 .. 460 
 68, 70 
 .. 506 
 .. 281 
 .. 176 
 .. 243 
 .. 217 
 .. 308 
 
 537 
 
 460 
 
 415 
 
 257 
 
 62,70 
 
 ... 200, 20] 
 
 354, 372 
 
 18 
 
 ... 286, 414 
 
 50 
 
 575 
 
 15, 311 
 Culliford 256 
 
 211 
 
 48 
 
 ... 101, 465 
 
 48 
 
 114 
 
 338 
 
 ... 63, 68, 70 
 
 ■20, 
 535 
 409 
 
 Higgins V. Senior 
 
 ... 154 
 
 465, 478 
 
 ... 432 
 
 ... 418 
 
 ... 299 
 
 ... 505 
 
 ... 350 
 
 175, 178 
 
 Kill, ex 2y(trte 
 
 V. Andrews ... 
 
 r. Idle 
 
 V. Sugrue 
 
 Wilson 
 
 Hillyard v. Mount... 
 Hinckley v. Walton 
 Hinde v, Whitehouse 
 Hingstonv. Wendt... 
 
 Hoare v. Clement . . . 
 Hobbs V. Hemming 
 Hochster r. Delatour 
 Hodgkinson v. Fernie 
 Hodgson r. Brown . . . 
 
 v. Loy ... 
 
 Holcroft V. Higgins 
 Holderness v. Lamport 
 
 v. Shackels 
 
 Hollingsworth v. Brodrick 
 Hollingworth v. Palmer . 
 Hoist V. Pownal 
 Holt i;. Wilson 
 Hoole V. Groverman 
 Hooper i;. Gumm ... 
 V. Lusby 
 
 186, 
 509, 
 
 Hopper V. Burness ... 
 Horn V. Bensusan ... 
 
 V. Gilpin 
 
 Horncastle v. Farran 
 Horneyer v. Lushington . . . 
 
 Horsley t'. Rush 
 
 Horton i'. The Earl of Devon 
 Hoskins v. Pickersgill 
 
 V. Slayton ... 
 
 PAGE 
 . 101 
 . 748 
 . 249 
 189 
 534 
 
 464 
 
 305 
 
 414 
 
 312, 528, 537 
 595 
 
 101 
 
 296 
 
 448 
 
 37 
 
 48 
 
 ... 404, 408 
 
 20 
 
 46 
 
 02, 63, 65, 68 
 ... 282 
 ... 471 
 ... 411 
 ... 382 
 ... 29 
 1, 24, 48 
 ... 62 
 376, 382 
 ... 241 
 
 Hotham v. East India Co. 
 Hough V. Manzanos 
 Houghton, ex parte... 
 House r. Draper ... 
 Howard v. Shepherd 
 
 r. Tucker ... 
 
 How V. Kirchner ... 
 Howe I'. Nappier ... 
 Hubbard v. Johnstone 
 Hubbertsy r. Ward 
 Hudson V. Bilton ... 
 
 V. Clementsou 
 
 v. Ede 
 
 V. Guestier... 
 
 , 60 
 . 236 
 . 296 
 . 176 
 . 425 
 
 3 
 
 90 
 
 .. 343, 363 
 
 177 
 
 43 
 
 265 
 
 273, 274, 278 
 324, 416, 420 
 
 259 
 
 235 
 
 492 
 
 48 
 
 260 
 
 205 
 
 212 
 
 249 
 
 19
 
 TABLE OP CASES. 
 
 XXXYll 
 
 PAGE 
 
 Huilson V. Hill 189, 202 
 
 Hughes v. Cornelius 19 
 
 V. Morris ... ... 43, 45 
 
 Hulle V. Heitiiian ... 474 
 
 Humble v. Hunter 176, 178 
 
 Hum frey V. Dale 210,212 
 
 Huntr. Ward 409 
 
 Hunter V. Beale 409,415 
 
 V. Fry 180, 351 
 
 V. M'Gowan 341 
 
 V. Parker 14, 15 
 
 V. Prinsep 15, 176 
 
 311, 382 
 
 Hurry V. Mangles 414 
 
 Hurst V. Usborne 186,205 
 
 Hussey V. Christie 101 
 
 Hutchinson V. Bowker 211 
 
 -I". Guiou ... ... 343 
 
 "r. Tatham 178 
 
 Hutton r. Bragg ... 220,221,236 
 
 V. Warrt-n 163 
 
 Hyde v. Trent and Mersey Nav, 
 
 Co 324, 333 
 
 r. WUlis 214 
 
 Inglis V. Ushorwood 
 Ingram v. Agnew ... 
 Inman v. Keck 
 Ireland v. Livingstone 
 V. Thompson 
 
 V. Clegg 
 
 V. Mamiing... 
 
 ... 222, 403 
 
 305 
 
 592 
 
 405 
 
 7 
 
 195, 351, 352 
 8, 11 
 
 183 
 
 350 
 
 19 
 
 409 
 
 J. 
 
 Jackson V. Galloway 
 • V. Isaacson 
 
 V. Montgomery 
 
 V. Nicholl ... 
 
 r. Union, &c., Co. Limited 440 
 
 V. Vernon 23 
 
 Jaggers v. Bennings 62 
 
 James (Lady) V. East India Co. 180, 352 
 
 V. Griffin 405, 409, 410, 411 
 
 V. Jones 26 
 
 V. L. & S. W. R 843 
 
 PAGE 
 
 Jameson r. Drinkald 578 
 
 Jamieson f. Laurie ... ... 102, 252 
 
 JL'fliey v. Franconia, Owners of ... 842 
 
 -v. Legendra 300 
 
 Jeffreys V. Small ... ... ... 57 
 
 Jenkins v. Usborne 420, 426, 427 
 
 Jenkinson r. Hutchinson ... 176, 178 
 
 Jennings r. Griffiths 
 Jesse V. Roy 
 Jessel V. Bath 
 Je.sson t'. Solly 
 Jevan v. Whitworth 
 Job V. Langton 
 Johns r. Simons 
 
 Johnson r. Benson 
 
 r. Blumenthal ... 
 
 V. Broderick 
 
 r. Chapman 
 
 r. Credit Lyonais 
 
 r. Greaves 
 
 21 
 
 ,.. 464, 467 
 ... 261, 278 
 242, 250, 258 
 ... 427, 433 
 
 500 
 
 97 
 
 258 
 
 432 
 
 481 
 
 ... 503, 526 
 427, 432 
 
 107, 184, 312 
 
 — r. Machielsne 473 
 
 — V. Shippen 6, 106, 111, 115 
 Mail Steam 
 
 24 
 
 354 
 
 250 
 
 178 
 
 190 
 
 277,409,410, 411 
 
 Roval 
 
 Johnston v. 
 Packet Co. 
 Jolly V. Young 
 Jones r. Adamson . 
 
 V. Downman. 
 
 r. Holme 
 
 V. Jones 
 
 V. Nicholson . 
 
 Jordan v. "Warren . 
 Joseph V. Knox 
 Joyce V. Capel 
 Ju;?tice V. Brown . 
 Justin V. Ballam . 
 
 Kay V. "Wlieeler 
 Kearon v. Pearson ... 
 Keith V. Burrows ... 
 Kell r. Anderson ... 
 Kellner v. Le Mesurier 
 Kemp V. Halliday ... 
 Kern I'. Deslandes ... 
 Kerswell v. Bishop... 
 Key V. Cotesworth... 
 Kidd, Captain (case of ) 
 
 ... 138 
 
 ... 313 
 
 274, 311 
 
 ... 573 
 
 ... 59 
 
 101, 121 
 
 333 
 
 169, 249, 250 
 
 22, 23, 49, 350 
 
 ... 241, 244 
 
 440 
 
 500, 512, 528 
 
 233 
 
 23 
 
 ... 262, 263 
 127 
 
 Kidston v. Empire Mar. Ins. Co.. 
 
 390
 
 XXXVIU 
 
 TABLE OF Cx\SES. 
 
 PAGE 
 
 King V. Glover -IGo 
 
 V. Perry '^^ 
 
 V. Player 495 
 
 Kingsford v. Merry 426 
 
 Kingston (Duchess of ) case viii, 17 
 
 Kinlocli r. Craig 272 
 
 Kircliner t'. Venus 235 
 
 Kirk I'. Gibbs 1S6 
 
 Kiskr. Cory 179 
 
 Kitchen r. Irvine 23 
 
 Knight, i2e 414 
 
 r. Berry 59 
 
 r. Cambridge ... ... 137 
 
 V. Faith 7 
 
 KopetoiT r. AVilson 281 
 
 Kymer V. Suwercrop 405 
 
 Kynter's case 4 
 
 L. 
 
 Lackington v. Atherton 
 Lacon v. Liflen 
 Ladbrooke v. Crickett 
 Laidler v. Burlinsoii 
 Laingt'. Glover 
 
 V. HoUoway ... 
 
 Lamb v. Attenborough 
 
 V. Burnett ... 
 
 V. Durant 
 
 Lambert v. Acretree 
 Lang V. Anderdon ... 
 Langton v. Horton . . . 
 Lannoy v. Werry , . . 
 Lano V. Xeate 
 Lansdowne, ex parte 
 Lapraik v. Burrows 
 Laroche v. Oswin . . .. 
 Laurie v. Douglas . . . 
 Laveroni v. Drury . . . 
 Law V. Hollingsworth 
 Lawson v. Burness... 
 Layford i\ Tyler ... 
 Leary v. Lloyd 
 Leask v. Scott 
 Lebeau r. Gen. Steam X 
 Le Caux v. Eden . . . 
 Ledget v. Williams . . . 
 Leeds V. Wright 
 Leemin v. Snaith ... 
 Leer v. Yates 
 
 413 
 
 50, 644 
 
 ... 106, 603 
 
 2 
 
 306 
 
 189 
 
 432 
 
 125 
 
 67 
 
 59 
 
 206 
 
 4, .341 
 
 252 
 
 4 
 
 467 
 
 6 
 
 309 
 
 ... 261, 331 
 
 316 
 
 ... 148, 285 
 
 244 
 
 405 
 
 ... 135, 692 
 
 419 
 
 av. Co. ... 278 
 
 19 
 
 182 
 
 ... 409, 411 
 
 180 
 
 246, 247, 258 
 
 Leidman v. Schultz 
 Leigh V. Burleigh ... 
 Leman v. Gordon . . . 
 Lennard v. Fleming 
 V. Kobinsou 
 
 Le-slie v. 
 
 V. 
 
 Guthrie 
 Wilson 
 
 119, 
 
 Lester v. Van Haansbergen 
 Letchford v. Oldham 
 
 Lethulier (case of ) 
 
 Leuckhart r. Cooper 
 
 Lever Alkali Co. r. Johnson 
 
 Levy V. Costerton 
 
 LeAvin v. East India Co. . . . 
 
 Lewis r. Gray 
 
 V. McKee ... 
 
 r. Marshall ... 
 
 V. Kicholson 
 
 Leycester v. Logan . . . 
 Lickbarrow v. Mason 
 Liddard v. Lopes ... 
 Lilly V. Ewer 
 Limland r. Stevens 
 Lindo r. Rodney ... 
 Lindsay v. Gibbs ... 
 
 r. J anson . . . 
 
 Lindsey v. Barron . . . 
 Lipson V. Harrison... 
 Li.ster v. Baxter 
 
 V. Payne 
 
 Litt r. Cowley 
 Liverpool Borough Banl 
 
 PAGE 
 
 . 244 
 
 . 101 
 
 . 164 
 
 . 177 
 
 . 177 
 
 600 
 
 176 
 
 178 
 
 507 
 
 299 
 
 408 
 
 257 
 
 ... 180, 296 
 
 344 
 
 900 
 
 275, 276, 360 
 
 211 
 
 177 
 
 ... 340, 748 
 404, 418, 431 
 250, 313, 384 
 
 300 
 
 132 
 
 19 
 
 65 
 
 244 
 
 425 
 
 537 
 
 ... 107, 115 
 
 49 
 
 ... 413,415 
 r. Turner 
 
 3, 45, 48, 49, 643, 646, 648 
 Marine Credit Co. v. 
 
 Wilson 23 
 
 Lloyd V. Gen. Iron Screw Collier 
 
 Co 333 
 
 t". Guibert 256 
 
 1-. Guilert ]20 
 
 Lockart r. Falk 179 
 
 Lockyer r. Ofliey 137 
 
 London (Mayor of ) v. Hunt . . . 298 
 London & S. W. E. v. James ... 858 
 Lord Advocate v. Clyde Xav. Co. 637 
 
 Lucas V. Dorrien 
 
 V. Xockells 
 
 Luke V. Gibson 
 V. Lyde 
 
 Lutwidge v. Grey 
 Lyon V. Mells 
 
 310, 369, 370, 
 
 414 
 234 
 57 
 3 ( 4 
 376 
 374 
 284
 
 TABLE OF CASES. 
 
 XXXIX 
 
 M. 
 
 Mackenzie v. Rowe 
 V. Pooley 
 
 PAGE 
 
 26, 221 
 
 ... 21 
 
 ... laG 
 
 92, 94, 98 
 
 393 
 
 ... 427, 433 
 ... 187,307 
 
 493 
 
 ... 43,45,56 
 
 438 
 
 ... 485,487 
 
 401 
 
 154 
 
 29 
 
 21,56 
 
 474 
 
 ... 409,412 
 
 36 
 
 89, 218, 234, 260 
 6 
 
 Mackie v. Lamlou ... 
 Mackintosh t'. Mitchenson 
 Mackrell r. Siniond 
 Macnee v. Gorst 
 Me Andrew v. Adams 
 McAuliff r. Bicknell 
 McCalmont r. Rankin 
 McConnel v. Hector 
 McDonald v. Jopling 
 M'Ewan v. Smith ... 
 Mcintosh V. Slade ... 
 Mclntyre v. Brown 
 Mclver V. Humble... 
 McKune v. Joyn-son 
 McLaren, i?c 
 McLaughlin v. Pryor 
 McLean v, Fleming 
 Maeburn v. Leckie... 
 Magee r. Atkinson... 
 Mahony v. Kekule... 
 Magalhaens v. Busher 
 Major I'. White 
 Mai Ian v. May 
 Manning v. Gist ... 
 
 V. Irving... 
 
 Mansfield v. Maithmd 
 Mariners, case of ... 
 Marqnand v. Banner 
 Marriott v 
 
 Co 
 
 Marsh v. Pedder . . . 
 Marshall r. De la Torre 
 
 r. Wilson... 
 
 Marsham r. Dutrey 
 Martin r. Temper! ey 
 Martindale v. Smith 
 Martini v. Coles 
 Mashiter v. Buller ... 
 Mason i\ Sainsbury 
 
 r. Skurry ... 
 
 Matthews th Gibbs... 
 
 Mavro v. Ocean Marine Insurance 
 
 Co 535 
 
 Max V.Roberts 70,308 
 
 Mayor of Colchester r. Brooke ... 591 
 London r. Hunt ...298 
 
 ... 210 
 
 ... 177 
 
 256, 302 
 
 ... 31 
 
 ... 210 
 
 ... 300 
 
 ... 11 
 
 348, 349 
 
 490, 492 
 
 ... 230 
 
 Anchor Reversionary 
 
 24 
 
 355 
 
 ... 194, 252 
 
 107 
 
 ... 506, 533 
 
 36 
 
 405 
 
 426 
 
 347 
 
 593 
 
 363 
 
 240, 311, 390 
 
 Mead v. Dawson ... 
 Medeiros r. Hill ... 
 Meggadow v. Holt ... 
 Meiklereid v. West 
 Meletopulo r. Rankinj. 
 Melville V. de Wolf 
 Menetone v. Gibbons 
 
 PAGE 
 
 300 
 
 307, 441, 443 
 2 
 
 670 
 
 409 
 
 478 
 
 107, 111, 115 
 
 492 
 
 Mcrabita r. Tmp. Ottoman Bank... 265 
 
 Mercantile Exch. B.ink r. Gladstone 83 
 
 Merchant Banking Co. of Lon. r. 
 
 Phccnix, &c., Co. 408,411,415 
 
 Shipping Co. Limited, 
 
 r. Arniitage 380 
 
 Me.staer r. Atkins ... 48 
 
 r. Gillespie ... ... 43 
 
 Metcalfe v. Britannia Iron Works 
 
 Co 
 
 Meyer t". Dresser ... 
 
 V. Vander Deyl 
 
 'M\chi\c\, Ex parte ... 
 Miles r. Gorton 
 Miller r. Brant 
 
 1-. Titherington 
 
 Mills r. Baiubridge 
 
 r. Ball 
 
 r. Gregory 
 
 r. Long 
 
 Milvain v. Perez ... 
 Milward v. Hibbert 
 Mitchell V. Darthez 
 
 r.Ede ... 
 
 V. Rodney 
 
 1'. Scaife ... 
 
 Mitchenson v. Beglne 
 
 r. Oliver 
 
 Mitcheson v. Nicholl 
 Molfatt 1-. East India Co. . 
 
 r. Farquharson 
 
 Moir r. Royal Ex. Ass. Co 
 Mollerv. Young ... 
 Molloy r. Living ... 
 Monk r. Whiltenbury 
 Monkhouse r.Hay 
 Montagu v. Janverin 
 Moore v. Harris 
 
 r. Wilson ... 
 
 Moores V. Hopper ... 
 Moorsom r. Bell ... 
 
 V. Greaves 
 
 V. Kymer 
 
 380 
 
 242, 261, 364 
 ... 322, 520 
 ... 842,880 
 
 410 
 
 ... 134,485 
 
 526 
 
 363 
 
 409,411,425 
 
 491 
 
 490 
 
 178 
 
 ... 520,526 
 
 387 
 
 263 
 
 19 
 
 231 
 
 ... 180,357 
 .. 21,70,92 
 
 359 
 
 350 
 
 68 
 
 ... 206 
 234, 358 
 
 351 
 
 427 
 
 50 
 
 368 
 
 ... 256, 258 
 
 272 
 
 176 
 
 246 
 
 354 
 
 358, 359, 360
 
 xl 
 
 TABLE OF CASES. 
 
 Moorsom r. Page ... 194, 
 
 Moran v. Jones 
 
 More ■!;. Rowbotham 
 
 More wood v. Polloclc 
 
 Morgan v. N orth American Ins. 
 
 V. Sim 
 
 Morley v. Hay 
 
 Morris v. Le^^son ... 
 
 V. Robinson 
 
 Morrison v. Gen. Steanj Xav. 
 
 V. Gray ... 
 
 V. Parsons 
 
 Morrough v. Comyns 
 Mors, Le Blanch v. "Wilson 
 
 Morse v. Slue 
 Morteo v. Julian ... 
 Moss V. BjTom 
 
 V. Charnock . . . 
 
 ?;. Mills 
 
 Mount V. Larkins . . . 
 Mouse's case 
 Mucklow V. Mangles 
 Muller V. Gernon ... 
 MuUoy t?. Backer ... 
 Murray v. Moutrie... 
 Myer v. Vancler Deyl 
 Myers r. Willis 
 
 N. 
 
 84, 
 
 PAGE 
 
 351 
 
 352 
 
 500 
 
 528 
 
 
 59 
 
 
 333 
 
 Co. 
 
 361 
 
 
 581 
 
 
 408 
 
 180, 
 
 191 
 
 
 314 
 
 Co. 
 
 581 
 
 
 272 
 
 
 176 
 
 
 17 
 
 
 323 
 
 285, 
 
 330 
 
 
 715 
 
 
 137 
 
 
 48 
 
 
 48 
 
 187, 
 
 307 
 
 
 502 
 
 
 2 
 
 
 362 
 
 165, 
 
 379 
 
 
 126 
 
 ... 
 
 533 
 
 
 21 
 
 Navalshaw r. BroAvnrigg 433 
 
 Naylor v. Taylor ... 441, 443, 445 
 
 N eave I). Pratt 483 
 
 Neish V. Graham 235 
 
 Nelson v. Ass. for Protection of 
 Commercial Interests, &c. 
 
 V. Couch 
 
 Newberry v. Colvin 
 Newman v. Cazalet 
 
 V. "Walters 
 
 Newsom v. Thornton 
 Nicholas v. Dracachis 
 Nicholl V. Mumford 
 Nicholls V. Lefeuvre 
 Nichols V. Clint 
 Nicholson v. Chapman 
 
 V. Mouusey 
 
 Nieman v. Moss 
 Nix V. Olive 
 
 ... 576, 
 28, 30, 33, 
 
 162, 537, 
 401, 405, 
 ... 45, 
 
 412, 
 
 347 
 593 
 220 
 534 
 539 
 426 
 648 
 
 66 
 408 
 272 
 537 
 
 37 
 243 
 424 
 
 Noble V. Adams 
 Norris r. Dresser . . . 
 Northey I'. Field ... 
 Notara v. Henderson 
 
 Nugent V. Smith . . . 
 Nutt V. Bordeaux . . . 
 
 0. 
 
 Odams r. Avery 
 Oddy v. Bovill 
 Ogden V. Graham ... 
 Ogg t'. Shuter 
 Ogle r. Atkinson ... 
 
 r. "Wrangham . . . 
 
 Oglesby v. Yglesias 
 Oiirloffr. Briscall ... 
 Oliver I'. Fielden ... 
 Ollive V. Booker ... 
 Oppenheim v. Kussxil 
 Ojjy V. Child 
 Organ v. Brodie 
 Orr r. Dickinson ... 
 Osgood V. Gronmg... 
 Oshey v. Hicks 
 Oswell V. "Vigne 
 Ouston V. Hebden ... 
 Owston V. Ogle 
 
 P. 
 
 Palmer v. Blackburn 
 
 r. Gooch 
 
 V. Lorill ard ... 
 
 r. Marshall ... 
 
 V. Moxon ... 
 
 v. Rouse 
 
 Pant V. Eden 
 
 Paradine r . Jan e ... 
 
 Parish v. Crawford 
 
 Parker v. James 
 
 ' V. "Winlow ... 1' 
 
 Parmenter v. Todhunkr . . . 
 Parnaby v. the Lancashire 
 
 Co 
 
 Parrett Nav. Co. v. Robins 
 Pasmore v. Boustield 
 
 PAGE 
 
 413 
 
 213 
 
 412 
 
 257, 261, 312 
 
 331 
 
 ... 257,327 
 
 138 
 
 219, 
 
 232 
 
 
 19 
 
 
 182 
 
 276, 
 
 405 
 
 
 267 
 
 ... 
 
 62 
 
 
 178 
 
 
 261 
 
 . .. 
 
 207 
 
 206, 
 
 207 
 
 408, 
 
 411 
 
 
 492 
 
 ... 
 
 97 
 
 
 48 
 
 385 
 
 386 
 
 ... 
 
 183 
 
 ... 
 
 296 
 
 59, 61 
 
 • *> 
 
 68 
 
 ... 210 
 ... 96 
 ... 441 
 
 187, 307 
 ... 48 
 
 562, 735 
 
 ... 143 
 
 ... 444 
 
 25, 27, 221 
 
 ... 307 
 
 7, 190, 244 
 
 ... 120 
 
 Caiuil 
 
 ... 593 
 
 ... 593 
 
 ... 71
 
 TABLE OF CASES. 
 
 x\i 
 
 Paterson v. Grandasequi 
 
 1'. Harris . . . 
 
 Patorni v. Campbell 
 Patten v. Thompson 
 Patterson r. Tasli ... 
 Paul r. Birch 
 
 V. Eden 
 
 Peake r. Carrington 
 Pease v. Gloahee ... 
 Peek v. Larsen 
 Peel v. Price 
 Penroac v. Wilkes ... 
 Perrott r. Bryant "... 
 Perst V. Dowie 
 Petrocochino v. Butt 
 Pettegrew v. Pringle 
 Phillips V 
 f 
 
 Briard ... 
 
 Clark ... 
 i: Claggctt 
 v. Headlam 
 V. Huth ... 
 r. Irving ... 
 !'. Ilodie ... 
 Royal Ex. As; 
 '' V. Barclay 
 
 Pliyn r. 
 
 Pickerin 
 
 Pinder i-rWilks .".. 
 
 Pipon r. Cope 
 
 Pirie v. Anderson ... 
 
 Place r. Potts 
 
 Plumraer v. Wildman 
 
 VXGE 
 
 178 
 
 332 
 
 425 
 
 271 
 
 426 
 
 219, 3G9, 532 
 ... 4G2, 4G7 
 
 ... 155 
 
 420 
 
 ... 230,255 
 25G 
 
 ... 355 
 
 451 
 
 180 
 
 258 
 
 206 
 
 211 
 
 261 
 
 GO 
 
 ... 148,285 
 429 
 
 C 
 
 Pole v. Cetcowich 
 
 V. Fitzgerald 
 
 Polle.xfen v. Moore ... 
 
 Pope r. Baridge 
 
 Portalis v. Tetley ... 
 Porleous r. "Watmy 
 Porter r. Izat 
 Posteltliwaite v. Freeland .. 
 
 Pott uEy ton 
 
 Potts r. Bell 
 Powell V. Gudgeon.. 
 
 V. Hyde 
 
 r. Lay ton . . 
 
 Power V. Whitmore 
 
 Pratt t*. Ashley 
 
 r.Cuir " 
 
 Prendergast v. Comptou 
 Preston v. Tamplin 
 Price V. Noble 
 
 306 
 218 
 137 
 
 329 
 
 360 
 
 137 
 
 56 
 
 25, 120 
 508, 509, 511 
 514, 515, 516 
 307, 308, 337 
 
 9 
 
 402 
 
 186 
 
 432 
 
 ... 247,259 
 
 307 
 
 ... 190 
 
 ... 451 
 
 438, 450 
 
 9,517 
 
 137 
 
 70 
 
 507, 510, 511, 512 
 534 
 
 308 
 
 479 
 
 . 166 
 . 63 
 . 506 
 
 PAGE 
 
 Priestly r. Fern ie 84 
 
 Pringle r. Mollett 249 
 
 Proprietors of Trent and Mersey 
 
 43: 
 
 Nav. V. Wood 
 Puller r.Halliday.. 
 V. Staiuforth 
 
 Purkis V. Flower .. 
 Pust V. Dowie 
 
 Q. 
 
 Quarman v. Bennett 
 Queiroz v. Trueman 
 
 R. 
 
 Radonhnrst v. Bates 
 Raggr. King 
 Raine v. Bell 
 Raitt r. Mitchell ... 
 Randall r. Lynch ... 
 Rands v. Thomas ... 
 Rankin v. Potter ... 
 Ratchford r. Meadows 
 llayne, ex parte 
 Rayner v. Harford ... 
 Roa t'. Burnis 
 Read r. Chapman ... 
 Rederson r. Lotinga 
 Redhead v. Mid. R. Co. 
 Redmond r. Smith... 
 Redsdale v. Newnliam 
 Reed r. White 
 Reeve v. Davi.-- 
 Reg. V. Arnaud 
 
 V. Chaney 
 
 V. Collingridg'j 
 
 V. Cunningham 
 
 V. Lopez 
 
 V. Seberg 
 
 Reid V. Bonham 
 
 I-. Coe 
 
 V. Darby 
 
 V. Fairbanks . . . 
 
 V. Ho.skins 
 
 Renno v. Bennett ... 
 Renteria v. Ruding... 
 Reu.sse f. Meyers ... 
 
 316 
 
 198 
 
 184, 196, 207 
 351 
 
 619, 880, 886 
 204 
 
 36 
 
 426 
 
 69 
 
 ... 490,495 
 
 309 
 
 101 
 
 247 
 
 56 
 
 351 
 
 48 
 
 341 
 
 265 
 
 179 
 
 490, 495, 496 
 
 178 
 
 ... 163,333 
 ... 285,455 
 
 206 
 
 63 
 
 22 
 
 41 
 
 155 
 
 660 
 
 573 
 
 694 
 
 54 
 
 7 
 
 20 
 
 6, 14, 16, 311 
 
 2 
 
 ... 448,449 
 
 76, 133 
 358 
 
 56, 352
 
 xlii 
 
 TABLE OF CASES. 
 
 Eex V. Benson 
 
 ■ f. Douglas 
 
 V. KejTi 
 
 V. Lamb 
 
 1'. Miller 
 
 r. Neale 
 
 V. Pixley 
 
 V. Scriveners' Co. 
 
 r. Stanton 
 
 r. Tubbs 
 
 i;.Walsb 
 
 f. Watts 
 
 Reynolds i;. J ex 
 
 Rhode t'. ThAvaites 
 
 Rhodes v. Leach 
 
 Rich f . Coe 
 
 V. Kneeland ... 
 
 Richardson v. Campbell . . . 
 
 V. Goss. . . 
 
 r. Xourse 
 
 -= — - r. Stanton 
 
 Rickanan v. Carstairs 
 Ridgway v. Roberts 
 Ridsdale v. Shedden 
 Rigby V. He'Nvett ... 
 Rinquist v. Ditchell 
 
 Ripley v. Scaife 
 
 Ritchie v. Atkinson 
 
 r. Bousfield 
 
 River Weir Commission 
 
 Adamson 
 
 Roberts v. Holt 
 
 r.Ogilby 
 
 Robertson v. Clarke 
 
 IK French 
 
 V. .fackson 
 
 Robinett r. Ship Exeter 1 
 
 Robins r. Power , 
 
 Robinson r. Ewer ... 
 
 V. Gleadow 
 
 i: Knights 
 
 r.Lyail 
 
 v. Price ... 
 
 V. Read 
 
 V. Thompson 
 
 V. Turpin 
 
 Rocher v. Busher. . . 
 Rodger v. the Comptoir 
 
 compte de Paris 2 
 Rodrigues r. Melhuish 
 Roe r. Hackett 
 
 PAGE ] 
 
 
 296 
 
 
 467 
 
 
 919 
 
 
 154 
 
 . 154 
 
 296 
 
 
 154 
 
 
 47 
 
 . 
 
 326 
 
 155 
 
 157 
 
 
 467 
 
 
 47 
 
 
 593 
 
 
 89 
 
 
 2 
 
 
 124 
 
 . 90, 
 
 100 
 
 
 285 
 
 . 
 
 48 
 
 
 410 
 
 . 317, 
 
 517 
 
 . 
 
 18G 
 
 
 56 
 
 5, 8, 15 1 
 
 
 302 
 
 
 591 
 
 . 88, 
 
 255 
 
 
 354 
 
 . 200, 
 
 352 
 
 
 159 
 
 ers r. 
 
 
 
 593 
 
 . 
 
 358 
 
 
 62 
 
 
 1 
 
 50, 
 
 211 
 
 
 212 
 
 35, 464, 
 
 487 
 
 . 91, 
 
 469 
 
 . 
 
 137 
 
 
 62 
 
 
 380 
 
 
 96 
 
 
 506 
 
 
 356 
 
 
 69 
 
 
 325 
 
 
 96 
 
 ■ d'Es- 
 
 
 -75, 410, 
 
 419 
 
 . 159, 
 
 160 
 
 . 
 
 182 
 
 Roelandts v. Harrisun 
 Rogers v. Forrester... 
 V. Hunter . . . 
 
 PAGE 
 
 ... 205 
 
 249, 251 
 248, 253 
 ... 332 
 
 Rohl V. Parr 
 
 RoUeston v. Hibbert 3 
 
 Romney Marsh (Lords, &:c., of), r. 
 
 Corporation of Trinity House ... 593 
 Rosario Messina v. Eustachio Petro- 
 
 cocchino ... ... ... ... 5.34 
 
 Roscow i;. Corson ... 137 
 
 Ross t'. Hunter 138 
 
 r.Thwayte 524 
 
 Routh V. McMeUon 205 
 
 Rowe V. Pickford 4o9, 41 1 
 
 Royal Ass. Co. r. Idle 6 
 
 Ruck r. Hatfield 286,413 
 
 Rugg f. Minett 414 
 
 Rundle r. Beaumont 326 
 
 Rusden v. Pope 23, 24 
 
 Russell V. Niemann . . . 242, 327 
 Rvali'.RoUe 115 
 
 o3, 
 
 Sack V. Ford 
 
 Samsun v. Bragintun 
 
 Sandeman v. Scurr 33, 254, 
 
 Sanders r. Yanzelle 273, 359, 360, 
 
 286 
 109 
 287 
 416 
 420 
 256, 299, 302 
 69 
 
 Sanderson i: Busher 
 
 Sands r. Child 
 
 Sanginnetti v. Pacific Steam Nav. 
 
 Co ... 178 
 
 Santos r. Brice ... ... ... 354 
 
 Sappho r. Denton 547 
 
 Sargent r. Monis 273 
 
 Sarquay v. Hobson 9 
 
 Saunders v. Drew 350 
 
 Saville v. Campion ... ... 225 
 
 Scaife v. Tobin 358, 359, 528, 533 
 
 Scaramanga r. Stump ... 309,333 
 
 Scarborough r. Lyrus 115 
 
 Schilizzi v. Derry 190, 329 
 
 Schloss V. Heriot 528 
 
 Schmalz v. Aveiy 176, 173 
 
 Schmidt v. Royal Mail Steamship 
 
 Co 261,508,744 
 
 I'. Tiden 259 
 
 Schotsmans v. Lancashire, &c., 
 
 Ry. Co 263,401,410,413
 
 TABLE OF CASES. 
 
 xliii 
 
 SchuUz r. LoiJomanu 
 
 Schuster r. Fletclier 
 
 500, 
 
 "M rt 'Lr--in.-»« 
 
 36, 257, 
 
 Scott V. Lubby 
 
 r. Miller 
 
 ... 93, 
 
 r. Pettit 
 
 .. 410, 
 
 r. Scott 
 
 
 Scull r. Criddlc 
 
 
 Seager v. Duthie ... 
 
 202, 204, 
 
 Sec. of Board of Trade 
 
 V. Sund- 
 
 holm 
 
 
 Sedgwortli v. Overend 
 
 
 Senat r. Porter 
 
 
 Servante r. James ... 
 
 
 Sewall I'. United lus. Co. 
 
 
 Seymour v. Lon. & Pro\ 
 
 '. Marine 
 
 Ins. Co. 
 
 . . . ... 
 
 Schack V. Anthony 
 
 
 Shadforth r. Higgins 
 
 ... 204, 
 
 Shand v. Sanderson 
 
 233, 234, 
 
 Shank, ex parte 
 
 
 Shannon v. Owen . . . 
 
 
 Sharp r. Grej' 
 
 
 Sliarpc V. Gibbs ... 
 
 
 Sliepard r. De Beniale-i 
 
 
 Shepherd r. Harrison 
 
 267, 272, 
 
 V TTilla 
 
 
 f }\ llft'^f*!! 
 
 
 J. ■\Vri"lit 
 
 .-.0^ 
 
 Sheppard v. Union Bank of Lon. . . . 
 
 V. Wright 
 
 
 Sheriff r. Cadell ... 
 
 
 1- Pntt-T 
 
 
 Shields v. Davis ... 
 
 
 ,. "Wilkin^- 
 
 
 Ship Abo 
 
 
 Acta?on 
 
 
 Actif 
 
 
 Adelaide 
 
 ... 442, 
 
 Admiral Boxer 
 
 ... 159, 
 
 Adventure ... 
 
 
 Atina Van Linge 
 
 
 ■ Agincourt 
 
 5, 125, 
 
 Agra 
 
 
 ■ Agricola 
 
 
 Aid 
 
 ... 130, 
 
 Albion 
 
 
 Ale.xander 70, 9 
 
 2, 98, 103, 
 
 Alien 
 
 ... 544, 
 
 Aliiia 
 
 ... 550, 
 
 Aline... 106, 
 
 117, 597, 
 
 AGE 
 212 
 
 516 
 420 
 442 
 345 
 415 
 37 
 14 
 207 
 
 685 
 69 
 
 326 
 69 
 
 501 
 
 287 
 176 
 207 
 275 
 101 
 3 
 333 
 206 
 355 
 411 
 452 
 504 
 533 
 432 
 505 
 56 
 309 
 364 
 190 
 279 
 571 
 735 
 443 
 160 
 103 
 103 
 127 
 589 
 159 
 556 
 548 
 110 
 547 
 886 
 599 
 
 Ship 
 
 
 
 PA<}E 
 
 Amelia 
 
 
 341, 858 
 
 American 
 
 399 
 
 589, 592 
 
 Amphy trite . . . 
 
 
 134, 484 
 
 Andalusian . . . 
 
 
 592, 633 
 637, 858 
 
 Anders Knape 
 
 .. 
 
 ... 549 
 
 Andrew Wilson 
 
 
 ... 736 
 
 Aneroid 
 
 
 ... 104 
 
 Angerona 
 
 
 ... 246 
 
 Ann 
 
 
 ... 578 
 
 Anna 
 
 
 103, 619 
 
 Annandale ... 
 
 
 655, 656 
 
 Aimapolid 
 
 159, 
 
 160, 538 
 
 Anne 
 
 
 ... 399 
 
 Anne and Mary 
 
 
 ... 576 
 
 Annette 
 
 
 ... 566 
 
 Anon 
 
 490, 
 
 491, 465 
 
 Antelope 
 
 
 546, 565 
 
 Apollo 
 
 
 ... 60 
 
 Aciuila 
 
 
 ... 545 
 
 Arabella and Madeii 
 
 a 
 
 ... 19 
 
 Aracan 
 
 
 ... 592 
 
 Araminta 
 
 
 456, 460 
 
 Ardincaple ... 
 
 
 ... 556 
 
 Argentina 
 
 
 269, 275 
 
 Argo 
 
 159, 
 
 160, 573 
 
 Argos, (Cargo Ex.) 
 
 310, 
 
 346, 886 
 
 Ariadne 
 
 .. 
 
 ... 113 
 
 Arizona 
 
 
 688, 920 
 
 Arkle, George 
 
 
 ... 585 
 
 Athol 
 
 
 ... 593 
 
 Atlantic 
 
 
 ... 495 
 
 Atla.s 
 
 109, 
 
 110, 111 
 
 
 121 
 
 159, 546 
 
 Augusta 
 
 109, 
 
 110, 113 
 114, 115 
 
 Aurora 
 
 .. 5, 
 
 115, 279 
 
 Australia 
 
 .. 
 
 5, 13, 49 
 
 Baboon 
 
 
 ... 107 
 
 Balfour 
 
 
 ... 298 
 
 Baltic Merchant 
 
 
 1.32, 487 
 
 Baltimore 
 
 
 540, 552 
 
 Barbara 
 
 
 ... 107 
 
 Barefoot 
 
 
 541, 545 
 
 Baron Holberg 
 
 
 ... 578 
 
 Bartley 
 
 
 ... 557 
 
 Batavia 
 
 
 495, 601 
 
 Beatrice 
 
 
 ... 5 
 
 Beaver 
 
 
 162, 464 
 
 Belle 
 
 
 ... 549 
 
 Bellona 
 
 ., 
 
 ... 569
 
 xliv 
 
 TABLE 0¥ CASES. 
 
 Ship Bellerophon, H. M. S. 
 
 • Benares ... 117, 
 
 Bengal 
 
 Beta IjO, 
 
 Betsy 19,326, 
 
 547, 548, 577, 
 
 Bilboa 
 
 Birkenhead . 
 
 Black Boy . 
 
 Blake... 
 
 Blakenly 
 
 Blenden Hall 
 
 Blenheim 
 
 Bold BuccleuLjh 
 
 Bomarsimd 
 
 Bonaparte ... 107, 
 
 Bointa 
 
 Bongainville 
 
 Branston 
 
 Bremen 
 
 Bristol 
 
 Britain 
 
 Britannia 
 
 Brothers 
 
 Bulnier 
 
 Butler, C.S.... 
 
 Bywell Castle 
 
 Cairo ... 
 
 Caledonia 
 
 Calypso 
 
 Cambridge . . . 
 
 Camilla 
 
 Cami^bell (Lady) 
 
 Cape Packet ... 
 
 Carlotta 
 
 Caroline 
 
 Cartsburn 
 
 Castilia 
 
 Castletown ... 
 
 Catharine ... 110, 
 
 Cathcart 
 
 Centurion 
 
 Ceylon 
 
 Chad on 
 
 Chanoury 
 
 Charkieh 
 
 Charles Adolphe 
 
 Charles Amelia 
 
 Charlotta ... 538, 
 
 134, 
 
 132, 
 
 : 
 
 PAGE 
 
 
 592 
 
 597 
 
 606 
 
 
 577 
 
 718 
 
 842 
 
 445 
 
 447 
 
 591 
 
 606 
 
 160 
 
 593 
 
 
 593 
 
 ... 
 
 541 
 
 
 487 
 
 494 
 
 674 
 
 538, 
 
 545 
 
 ... 
 
 606 
 
 595, 
 
 598 
 
 601, 
 
 602 
 
 
 539 
 
 113, 
 
 120 
 
 311, 
 
 600 
 
 14, 15 1 
 
 584, 
 
 588 
 
 ... 
 
 538 
 
 
 399 
 
 
 108 
 
 
 548 
 
 
 542 
 
 
 563 
 
 482, 
 
 483 
 
 592, 
 
 633 
 
 ... 
 
 589 
 
 ... 
 
 735 
 
 ... 
 
 495 
 
 
 536 
 
 482, 
 
 485 
 
 
 495 
 
 133, 
 
 487 
 
 
 541 
 
 
 571 
 
 ... 
 
 546 
 
 
 592 
 
 132, 
 
 464 
 
 
 542 
 
 116, 
 
 539 
 
 ... 
 
 23 
 
 
 125 
 
 ... 
 
 571 
 
 ... 
 
 159 
 
 
 589 
 
 540, 
 
 580 
 
 ... 
 
 541 
 
 ... 
 
 602 
 
 539 
 
 540 
 
 Ship 
 
 PAGE 
 
 Charlotte Caroline ... ... 570 
 
 Charlotte Wylie 552 
 
 Chasca 333 
 
 Chieftain 843 
 
 Chimsera 599 
 
 Christiana 159,606 
 
 Christopher 19 
 
 Citto 438 
 
 City of Cambridge 159 
 
 Edinburgh ... 541,548 
 
 London 471 
 
 Mecca 579,580 
 
 Mobile 495 
 
 Clara 595,602,747 
 
 Clara KUlam 842 
 
 Claris.sa ... ... ... 545 
 
 Cleadon 592 
 
 Cleopatra .541 
 
 Clifton 541, 550 
 
 Clyde 116,340,588 
 
 Clyther 596 
 
 Cognac 116, 121 
 
 Columbia 443 
 
 Columbine 551 
 
 Columbus ... ... ... 557 
 
 Comet 19 
 
 Comtesse de Frogcville 103, 104 
 Concordia ... ... ... 588 
 
 Condor 895 
 
 Consett 577 
 
 Constancia ... 119, 596, 600, 601 
 
 Constant Mary 17 
 
 Constant ia 279, 408, 425, 528 
 
 Constitution 540,588 
 
 Copenhagen ... 376, 399, 508, 511 
 
 Coromandel 545,557 
 
 Countess of Durhaui ... 577 
 
 Harcourt 132, 452 
 
 482 
 
 Courtney 491 
 
 Cybele ... ... ... 551 
 
 Cynthia ... 76, 110, 593 
 
 Daisy 160 
 
 Danckebaar 280 
 
 Dannebrog 842 
 
 Dantzic Packet 541 
 
 Daring 495, 597 
 
 Debrecsia ... ... ... 490 
 
 Der Mohr 567 
 
 Desdemona ... ... ... 595 
 
 Despatch 578, 591
 
 TABLE or CASES. 
 
 xlv 
 
 Ship Doveron 
 
 Diana 
 
 Dixon, Robert 
 
 Dorothy 
 
 Dorothy Foster 
 
 Dosseitci 
 
 Dowse 
 
 Dowthoqje ... 
 
 Dnml 
 
 Duchess cle Brabant. 
 of Kent 
 
 Duero 
 
 Duke of Bedford 
 Manchester 
 
 Dumfries 
 Dundee 
 Ealing Grove... 
 
 Earl of Auckland 
 Etjlinton 
 
 . PAGR 
 
 o41 
 
 i:)9, 4(tO, 573 
 
 549 
 
 ... 537 
 
 543 
 
 541 
 
 880 
 
 24, 25, 119, 596 
 GOO, 001 
 573, 577 
 ... GOO 
 
 4^7 
 
 201 
 
 ... 105, 590 
 IGO, 541, 
 573 
 ... 578, 5S3 
 3,341 
 133, 155, 157, 
 487 
 
 Earl Groy 
 
 East Lothian . . . 
 
 Eastern Monarch 
 
 Ebenezer 
 
 Eclipse 
 
 Eden 
 
 Edmond 
 
 Edward Hawkins 
 
 and Marv 
 
 Oliver 
 
 Effort... 
 
 Eleanora Chaiiotta 
 
 Eleanore 
 
 Eleunora Catherina 
 
 Elise 
 
 715 
 
 550 
 
 544 
 
 578 
 
 557 
 
 575 
 
 583 
 
 159 
 
 114 
 
 540 
 
 509 
 
 UU, 119, 12], 
 
 597 
 
 . 538, 539, 542, 545 
 
 546, 559 
 
 ... 735 
 
 528, 571 
 
 ... 566 
 
 ■ Eliza ... 132, 452, 482, 541, 596 
 
 Eliza (Cornish) 
 
 Eliza (Ireland) 
 
 Eliza Jane ... 
 
 Eliza (Weddell) 
 
 Elizabeth 
 
 Ella A. Clarke 
 
 Elliotta 
 
 Elpis 
 
 Elsebe 
 
 Emancipation 1()9, 110, 111, 113 
 
 Emanuel 399 
 
 Embden ... ... ... 4:33 
 
 13, 14 
 
 464 
 
 579 
 
 .. 117, 119 
 
 132, 445, 548 
 
 103 595, 843 
 
 544, 545 
 
 880 
 
 16 
 
 .Ship Emilien Marie 
 
 Emma 
 
 Empire of Peru 
 
 Empusa 
 
 Emu 
 
 Enchantress ... 
 
 Endnra 
 
 Endraught ... 
 
 Energie 
 
 Energy 
 
 Englishman ... 
 
 Eulides 
 
 Ericsim 
 
 Esk 
 
 Etrusco 
 
 Eugene Bourne 
 
 E vangel ist r ia . . . 
 
 Ewell Grove ... 
 
 Excelsior 
 
 Exeter 
 
 Experiment ... 
 
 Explorer 
 
 • Express ... 250, 
 
 Faithful 
 
 Fanny 
 
 Fanny and Elmira 
 
 Favorite 
 
 Favorite de Jersev 
 
 Felix 
 
 Fenham 
 
 Feiiix... 
 
 Ferouia 
 
 Fidentia 
 
 Figlia Maggiore 
 
 Flad-Oyen 
 
 Fleur-de-Lis ... 
 
 Florence 
 
 Fortitude 
 
 Fortuna 
 
 Fraflces 
 
 Frances Mary 
 
 Francis and Eliza 
 
 Francisca 
 
 Franconia 
 
 Frederick 133, 
 
 Freedom 
 Friends 
 Fusilier 
 Fyenoord 
 Gage ... 
 
 387, 398, 
 
 PAGE 
 
 ... 275 
 
 540, 601 
 
 ... 110 
 
 119, 858 
 
 ... 559 
 
 125, 557 
 
 ... 115 
 
 ... 438 
 
 ... 861 
 
 159, 592 
 
 ... 586 
 
 ... 577 
 
 ... 591 
 
 ... 586 
 
 ... 400 
 
 ... 538 
 
 ... 5 
 
 542, 550 
 
 ... 593 
 
 ... 976 
 
 ... 5 
 
 ... 580 
 
 335, 362, 880 
 
 97 
 
 571 
 
 G, 311 
 
 493 
 
 596 
 
 261 
 
 589 
 
 .. 545, 563 
 102, 494, 597 
 
 280 
 
 33, 201, 287 
 17, 18 
 
 494 
 
 538 
 
 25, Gol, 018 
 
 400, 543, 545 
 
 46, 688 
 
 542 
 
 549 
 
 446 
 
 747, 842, 919 
 
 158, 442, 447 
 
 548 
 
 276 
 
 478, 479, 588 
 .. 557,735 
 
 583 
 
 568
 
 xlvi 
 
 TABLE OF CASES. 
 
 Ship Galam (cargo ex.) 
 
 Galatea 
 
 Ganges 
 
 Gauntlet 
 
 Gazelle 
 
 General de Caen 
 
 Hamilton 
 
 : — Smith 
 
 Generous 
 
 Gennessee 
 
 George 
 
 Arkle 
 
 Dean . . . 
 
 Home... 
 
 Georgiana 
 
 ■ • Germania 
 
 Gipsy ... 
 
 Gipsy King . . . 
 
 Girolamo 
 
 Glamorgan ... 
 
 Glanuibanta ... 
 
 Glasgow 
 
 Packet 
 
 ■ Glenahir 
 
 • Glengarry 
 
 ■ Gleumanna ... 
 
 ■ Glentanner . . . 
 
 Glory 
 
 Golubchick .., 
 Gondolier 
 Gosfabrick . . . 
 Governor Raffles 
 
 Grace 
 
 Graces 
 Gratitudine 104, 
 
 310, 
 Great Eastern 
 
 Pacific . . . 
 
 Grieswold 
 Guardian 
 
 Gustaf 
 
 Halley 
 
 Hamburgh 
 
 Hamilton 
 
 Hand of Providence 
 
 Hankow 
 
 Hanna 
 
 Harmonic 
 
 Harmony 
 
 Harriet 
 
 Heart of Oak... 
 
 PAGE 
 
 310, 380, 599 
 548 
 
 492, 548, 673 
 
 109, 110, 344 
 ... 588,595 
 
 160 
 
 442 
 
 99 
 
 15, 736 
 
 539 
 
 159 
 
 585 
 
 ... 545, 546 
 
 452 
 
 571 
 
 584 
 
 13,14 
 
 159 
 
 ... 160, 573 
 
 9 
 
 880 
 
 11 
 
 539, 541, 602 
 
 547 
 
 592 
 
 116 
 
 495 
 
 539 
 
 ... 491,494 
 487 
 
 99, 103, 115 
 ... 538, 550 
 
 15 
 
 ... 542,548 
 113, 119, 120 
 316, 508, 516 
 
 S43 
 
 105 
 
 579 
 
 5 
 
 595, 596, 599 
 ... 160,580 
 
 311 
 
 400 
 
 589 
 
 155, 714 
 
 159, 714, 719 
 ... 100,602 
 
 438 
 
 490, 547, 674 
 ,.. 115,601 
 
 Sliip Hebe ... 
 
 Hector 
 
 • Hedwig 
 
 Heinrich 
 
 • and Maria 
 
 Helen... 
 
 and George 
 
 Helena 
 Helgoland 
 Henry 
 Coxon 
 
 Herman Wedel 
 
 Hero 
 
 Hersey ... 117, 
 
 Herstelder . . . 
 
 Herzogin Marie 
 
 Hibernian 
 
 Hickman 
 
 Hiram 
 
 Hofl'nung 
 
 Hoghton 
 
 Hoop... 
 
 Hope 
 
 Horatio 
 
 Huntress 
 
 Ida 
 
 Idas 
 
 Immaganda . , . 
 
 Immanuel 
 
 Inca 
 
 Independence 
 
 India ... 99, 103, 
 
 Indian 
 
 Indian Chief ... 
 
 Indomitable ... 
 
 Industry 
 
 Inflexible 
 
 International... 
 
 Isabella... 459, 
 
 Isabella Jacobina 
 
 Isis 
 
 Itinerant 
 
 Jacob 
 
 Landstrom 
 
 Jane ... 
 
 and Matihha 
 
 Janet 
 
 Janet AYilson . . . 
 
 J enny ... 
 
 S. Barker 
 
 Lind 
 
 PAGE 
 
 111, 545, 549 
 ... 541, 542 
 
 158 
 
 599 
 
 18, 19, 477 
 
 444 
 
 548 
 
 20 
 
 108, 116, 117 
 ... 543, 548 
 
 733 
 
 ... 540,880 
 
 Ill 
 
 493, 596, 603 
 
 18,280 
 
 495 
 
 ... 155, 159 
 
 559 
 
 399 
 
 399, 443, 516 
 
 465 
 
 437, 438, 450 
 
 589 
 
 571 
 
 570 
 
 113, 115, 577 
 842 
 
 ... 575 
 
 399 
 
 ... 542,545 
 
 592 
 
 546, 618, 619 
 
 539 
 
 438 
 
 111, 112 
 541, 549, 579 
 
 589 
 
 344 
 
 492, 548, 669 
 ,.. 376,441 
 
 45 
 
 575 
 
 .. 104, 118 
 
 559 
 
 113, 540, 543 
 
 464 
 
 547 
 
 116 
 
 106 
 
 588 
 
 ,.. 493, 59
 
 TABLE OF CASES. 
 
 x\y\\ 
 
 Ship Jo=;monil 
 
 Jeune Paul 
 
 Joannes 
 
 Joliann (Frederich) ... 
 
 Joliann and Sie;:jnuuid 
 
 John 
 
 ■ Duiui 
 
 Evans ... 
 
 Fehrnian 
 
 Jackson... 
 
 and Mary 
 
 and Thonia.s 
 
 — — Jonathan Goodhue 113, 
 494, 495, 
 
 • Joncjo Andries 
 
 Bastiaan 
 
 Joseph 
 
 Harvey 
 
 Josephine 
 
 Jubilee 
 
 Jullioow Catharina 
 
 Jufl'rouw Maria 
 
 Juliana 
 
 Juno ... 
 
 Juijiter 
 
 Karnae 110, 
 
 Kate 
 
 Kathleen 
 
 Kennersley Castle 
 
 Kierlighett ... 
 
 Killarney 
 
 Kingalock 
 
 Kolaniozoo ... 
 
 L'Actif 
 
 La Belle Coquette 
 
 La Constaneia 
 
 Linda... 
 
 Flor ... 
 
 Little Joe 
 Lady Banks ... 
 
 Dowiishire 
 
 Durham 
 
 of the Lake 
 
 Lagan ... 
 Lanibton 
 
 Laura 
 
 La Virginie ... 
 LaYsabel .. 
 L'^da ... 
 L'Esperancc ... 
 Le Niemen ... 
 
 1U2, 
 
 111, 
 
 131 
 
 PA«E 
 
 ... n89 
 
 ... 5(i5 
 
 ... 557 
 
 ... 579 
 
 5 
 
 5, 563 
 
 ... 341 
 
 ... 881 
 
 ... 602 
 
 ... 103 
 
 577, 601 
 
 541, 559 
 
 116, 121 
 
 506, 5!)7 
 
 ... 548 
 
 543, 546 
 
 ... 450 
 
 548, 549 
 
 438, 458 
 
 ... 543 
 
 ... 450 
 
 442, 443 
 
 465, .')91 
 
 ... 160 
 
 482, 578 
 
 113, 118 
 
 ... 735 
 
 347, 60G 
 
 76, 110 
 
 ... 17 
 
 ... 154 
 
 ... 595 
 
 ... 602 
 
 567, 571 
 
 ... 569 
 
 516, 596 
 
 ... 577 
 
 5f)7, 599 
 
 ... 541 
 
 ... 16 
 
 P94, 899 
 
 465, 477 
 
 ... 842 
 
 5 
 
 ... 568 
 
 ... 54 
 
 ... 438 
 
 ... 107 
 
 ... 562 
 
 545, 546 
 
 ... 5(9 
 
 Ship Loo 
 
 Lima 
 
 Limerick 
 
 Lion... 
 
 Liz/ie 
 
 Lloyds 
 
 Lochiel 
 
 Lochlibo 
 
 London Merchant 
 
 98, 
 541, 
 
 Lord Cochrane 
 
 Hobart... 
 
 Nelson ... 
 
 Louisii 
 
 Lowthor Castlo 
 
 Lusitania 
 
 Lustre 
 
 Macta 
 
 Madonna 
 
 Madonna d'Idra 47^ 
 
 Magellan Pirates (The) 
 
 Malta 
 
 Margaret 
 
 Mitchell 
 
 Marathon 
 
 Maria 
 
 Jane .. 
 
 Loui.sa . . 
 
 Theresa 
 
 Mario Joseph . . , 
 
 Marquis of Huntley 
 
 Martha 
 
 !Martiu Luthor 
 
 Mary 
 
 Mary Anne 538, 550, 
 
 Caroline 
 
 159, 
 
 Massachu.setts 
 
 :Matchless 
 
 Medina 
 
 Medora 
 
 Mellona 
 
 Mentor 
 
 Mercurius 
 
 Mil ford 
 
 ^liuervia 
 
 Minnehaha ., 
 
 Mobile 
 
 Mona 
 
 Mountaineer .. 
 Mo-xhanij M. .. 
 
 132, 
 541, 
 
 r.voE 
 ... 576 
 ... 127 
 ... 24 
 
 159, 719 
 ... 108 
 ... 719 
 
 114, 115 
 
 160, 573 
 542, 544 
 
 548 
 
 110, 120 
 
 ... 490 
 
 ... 568 
 
 54S, 602 
 
 ... 125 
 
 ... 244 
 
 ... 550 
 
 ... 133 
 
 ... 450 
 
 491, .596 
 
 20, 572 
 
 ... 477 
 
 ... 547 
 
 12, 13 
 
 ... 160 
 
 160, 538 
 
 ... 547 
 
 ... 565 
 
 ... 492 
 
 ... 275 
 
 ... 543 
 
 ... 487 
 
 ... 543 
 
 159, 592 
 
 596, 600 
 
 736 
 
 ... 340 
 
 159, 573 
 577, 591 
 
 ... 548 
 ... 595 
 ... 606 
 ... 593 
 ... 399 
 ... 494 
 296, 452 
 548, 549 
 
 160, 460 
 490, 492 
 
 ... 540 
 580, 593
 
 xlviii 
 
 TAULE or CASES. 
 
 PAGE 
 
 Ship Mulgrave 540,547 
 
 Nancy 399 
 
 Xapier (Sir Charles) 495 
 
 Nelson 92,109,111,113 
 
 Nepoter 261 
 
 Neptune 5, 24, 99, 1<13, 131, 465, 
 
 471, 538, 541, 551, 606, 60S 
 
 Neptimus 
 
 Nestor 
 
 New Draper . . . 
 
 Eagle ... 
 
 Phcenix . . . 
 
 Night Watch... 
 
 Nile 
 
 Nina 
 
 Norma 
 
 Normandy 
 
 North American 
 
 Star ... 
 
 Northumbria . . . 
 
 547, 555 
 ... 843 
 
 543, 546 
 ... 843 
 ... 578 
 
 114, 528 
 
 843, 859 
 Nostra Simora de los Dolores 56 
 
 Signora del E 
 
 Nuova Laone.se 
 Eafi'aelina 
 
 Obey ... 
 
 — — Ocean ... 
 
 Ocean Queen 
 
 Oliver... 
 
 OU^^er 
 
 Onni ... 
 
 Onward 
 
 Orelia . . . 
 
 Orient... 
 
 Oriental 
 
 Orpheus 
 
 Oscar ... 
 
 Osmanli 
 
 Oster Eisoer 
 
 . Oswald 
 
 Otter ... 
 
 Pacific... 
 
 Packet 
 
 Palmyra 
 
 Panama 
 
 Parlement Beige 
 
 Partridge 
 
 Patria... 
 
 Pearl ... 
 
 — — Pensamento Feliz 
 
 Pensher 
 
 ■ Pepperell 
 
 102, 
 
 138, 443, 444 
 
 . 596,602 
 
 5 
 
 602 
 
 ... 127 
 
 osano 571 
 
 120 
 
 886 
 
 858 
 
 .. 103,443 
 
 103 
 
 108 
 
 120 
 
 103 
 
 .. 108, 120 
 .. 114, 603 
 
 579 
 
 .. 107, 111 
 
 579 
 
 563 
 
 114 
 
 399 
 
 600 
 
 589 
 
 103, 594, 595 
 
 528 
 
 544 
 
 108 
 
 579 
 
 5 
 
 .. 256,380 
 
 483 
 
 569 
 
 577 
 
 591 
 
 Ship Percy 
 
 Perla 
 
 Perseverance ... 
 
 Persian 
 
 Perth 
 
 Pickwick 
 
 Pieve Superieure 
 
 Pladda 
 
 Polka 
 
 Portsea 
 
 Potsdam 
 
 Potter, J. C. ... 
 
 • President 
 
 Pride of Canada, 
 
 Prince Frederick 
 
 — ' George... 
 
 Eegent... 
 
 Princess Alice 
 
 Helena 
 
 Louisa 
 
 Eoval 
 
 492, 
 
 109, 
 25, 
 
 Princeton 
 
 Priscilla 
 
 Progress 528, 543, 557, 
 
 Prosperous 
 
 Protector 
 
 Providence ... 
 Public Opinion 
 Purissima Concepcion 
 Queen... 
 
 Queen Mab 
 
 Eace Horse ...347,399, 
 Eaikes 
 
 Eajah 
 
 of Cochin 
 
 Eanger 
 
 Easche 
 
 Eebecca 
 
 Eed Eover 
 
 Eeliance 
 
 Eenter 
 
 Eepulse 
 
 Eeward 
 
 Ehadamanthe 
 
 Ehoderic Dhu 
 
 Eiby Grove ... 
 
 ^iga 
 
 Eipon ... ... 
 
 Eobert Dixon... 
 Hall ... 
 
 116, 
 
 107, 
 
 PAGE 
 24, 104 
 99, 103 
 ... 1 
 ... 606 
 ... 578 
 
 539, 545 
 ... 842 
 ... 575 
 ... 18 
 ... Ill 
 ... 442 
 ... 549 
 ... 438 
 
 548, 673 
 ... 488 
 
 114,490 
 
 118, 600 
 ... 548 
 
 496, 564 
 ... 588 
 ... 842 
 ... 159 
 
 119, 597 
 569, 571 
 
 ... 17 
 
 159, 573 
 
 460 
 
 579 
 
 602 
 
 852 
 
 538, 542 
 
 400, 543 
 
 ... 544 
 
 ... 745 
 
 145, 472 
 
 492, 494 
 
 ... 588 
 
 ... 545 
 
 399, 542 
 
 ... 542 
 
 ... 115 
 
 ... 5 
 
 548, 601 
 
 ... 548 
 
 107, 117 
 
 ... 116 
 
 ... 490 
 
 103, 619 
 
 ... 573 
 
 ... 549 
 
 ... 570
 
 TABLE OF CASES. 
 
 xlis 
 
 
 
 [•AGE 
 
 
 
 PAGE 
 
 Ship Robert Pow ... 
 
 ... 
 
 619 
 
 Ship Spirit of the Age 
 
 • . . 
 
 ... 544 
 
 Roe 
 
 
 547 
 
 Ocean 
 
 
 49, 858 
 
 Rolla 
 
 443, 447, 
 
 448 
 
 Spring 
 
 
 ... 588 
 
 Rona 
 
 
 584 
 
 Standard 
 
 
 ... 116 
 
 Rosario 
 
 ... G73, 
 
 849 
 
 Star of India . . . 
 
 
 ... 577 
 
 Rose ... 
 
 50, 399 
 
 578 
 
 Stella 
 
 
 540, 856 
 
 Ruyal Arch 105, 
 
 108, 110, 
 
 111 
 
 Stetton 
 
 
 ... 720 
 
 114 
 
 115, 116, 
 
 117 
 
 Success 
 
 
 296, 447 
 
 Royalist 
 
 ... 
 
 688 
 
 Sultan (cargo ex) 
 
 
 107, 121 
 
 Rubicon 
 
 ... 7(1, 
 
 110 
 
 Su.san 
 
 
 ... 133 
 
 Ruckers 
 
 ... 125, 
 
 162 
 
 Swan 
 
 
 ... 547 
 
 Saint Catharine 
 
 
 113 
 
 Sydney Cove ... 
 
 131, 
 
 490, 492 
 
 Cloud ... 
 
 ... 287, 
 
 842 
 
 Tartar 
 
 
 76, 113 
 
 Lawrence 
 
 
 450 
 
 Tecumseh 
 
 
 ... 76 
 
 Olaf ... 
 
 ... 595, 
 
 845 
 
 Tees 
 
 
 ... 544 
 
 Salacia 
 
 493, 540, 
 
 542 
 
 Temora 
 
 
 157, 714 
 
 
 548, 
 
 597 
 
 To.st 
 
 
 ... 132 
 
 Sally 
 
 ..• 
 
 279 
 
 Teutonia 
 
 , , 
 
 182, 380 
 
 Samuel 
 
 ... 
 
 548 
 
 Theresa Bonitu 
 
 • ■• 
 
 ... 359 
 
 Sun Francisco 
 
 • ■ • • . . 
 
 570 
 
 Thetis 16, 
 
 542, 
 
 550, 552 
 
 
 • . • • . * 
 
 280 
 
 Theodore 
 
 
 ... 543 
 
 
 Roman ... 
 
 ... 256, 
 
 306 
 
 Thomas Rlyth 
 
 
 ... 541 
 
 Sanceer 
 
 ... 
 
 579 
 
 Fielden 
 
 . , 
 
 ... 557 
 
 Sansom 
 
 
 570 
 
 Wood 
 
 , , 
 
 ... 563 
 
 Santa Brigacla 
 
 Cruz ... 
 
 
 571 
 569 
 
 
 
 ... 495 
 ... 575 
 
 
 >v uiiiuiigiui 
 Thomley 
 
 1 
 
 Sappho 
 
 ... 
 
 550 
 
 Ticonderoga ... 
 
 
 577, 579 
 
 Saracen 595, 
 
 602, 607, 
 
 747 
 
 Tigre.s.'j 
 
 
 405, 415 
 
 Sarah 
 
 ... • •• 
 
 542 
 
 Tirzah 
 
 ,, 
 
 ... 895 
 
 - Roll ... 
 
 
 545 
 
 Tobago 
 
 ... 
 
 ... 106 
 
 Christina 
 
 . .. 
 
 438 
 
 Toivo 
 
 ., 
 
 ... 114 
 
 Jane ... 
 
 ... 540, 
 
 548 
 
 Toronto 
 
 ., 
 
 ... 495 
 
 Saratoga . . 
 
 467, 548, 
 
 549 
 
 Traveller 
 
 .. 
 
 ... 542 
 
 Saxonia 
 
 
 
 583 
 
 Trelawncy 
 
 ... 
 
 542, 547 
 
 Scliiller (cargo ex) 
 
 ... 
 
 .557 
 
 Trident 91, 107, 
 
 108, 
 
 119, 600 
 
 Schwalbe 
 
 ... . . . 
 
 160 
 
 Triheten 
 
 
 ... 443 
 
 Scout 
 
 
 
 547 
 
 Triune 
 
 
 ... 313 
 
 Sedulous 
 
 ... . . . 
 
 568 
 
 True Blue 
 
 309, 
 
 547, 548 
 
 Segredo 
 
 • •• 
 
 7,13 
 
 Briton ... 
 
 
 ... 353 
 
 Seine 
 
 
 
 589 
 
 Tutela 
 
 
 442, 443 
 
 Seliua 
 
 
 596 
 
 Twilling Rig^t 
 
 
 ... 399 
 
 Shannon 
 
 544, 575, 
 
 578 
 
 Two Ellens ... 23 
 
 ,49, 
 
 102, 601 
 
 Shej^herdess . . . 
 
 443, 444, 
 
 446 
 
 Friends . . . 
 
 
 ... 162 
 
 Sidney Cove . . . 
 
 465, 477, 
 
 596 
 
 Sisters . . . 
 
 ... 
 
 ... 485 
 
 
 601, 
 
 608 
 
 Undaunted ... 
 
 
 ... 546 
 
 Sisters 
 
 3, 4, 5, 
 
 592 
 
 Union... 
 
 116, 
 
 569, 596 
 
 Soblomstem 310 
 
 382, 528, 
 
 599 
 
 Unity ... 
 
 
 ... 589 
 
 Sophia Cook ... 
 
 
 116 
 
 ■ Upnor 
 
 
 ... 540 
 
 Sophie 
 
 ... 98, 
 
 103 
 
 Valiant 
 
 
 ... 5 
 
 Sparkler 
 
 
 569 
 
 Vanguard 
 
 
 ... 461 
 
 Spes and Irene 
 
 
 445 
 
 Vegetantia ... 
 
 
 ... 296
 
 TABLE OF CASES, 
 
 Ship Velasquez 
 
 Velocity 
 
 Vesta 
 
 Vianna 
 
 Vibilia ... 99, 
 
 Victor 
 
 Victoria 
 
 Vigilantia 
 
 Vine ... 
 
 Virgil 
 
 Vivid 
 
 Volant 
 
 Volcano 
 
 Vortigern 
 
 Vrede 
 
 Vreede Sholtys 
 
 Vreylieid 
 
 Vrouw Anna Catliar 
 
 Elizabeth 
 
 Henrica 
 
 Judith 
 
 Margaretha 
 
 110, 
 19, 
 
 Mina 
 
 Wanstead 
 War 
 
 Warrior 
 
 Wataja 
 
 "Waterloo 
 
 Wave 
 
 Waverley 
 
 Wesley 
 
 West Friesland 
 
 Westminster ... 
 
 Westmoreland 
 
 99, 
 
 115, 132, 
 
 485, 
 
 Wight 
 
 Wild Ranger 
 
 Wilhelm Frederick ... 
 
 Wilhelmina ... 
 
 Willemlll 
 
 ■ William 148, 490, 
 
 Beckford 
 
 Hamilton ... 
 
 ■ and John . . . 
 
 Safford 
 
 Wilson 
 
 Woburn Abbey 
 Woodrop 
 Woosung 
 Yorkshireman 
 
 PAGE 
 
 ... 588 
 
 ... 588 
 
 ... 563 
 
 ... 592 
 
 114, 115 
 
 ... 576 
 
 570, 843 
 
 438, 442 
 
 540, 555 
 ... 575 
 ... 501 
 
 340, 341 
 ... 593 
 ... 577 
 ... 538 
 ... 296 
 ... 400 
 ... 400 
 ... 296 
 ... 399 
 442, 447 
 279, 280 
 
 541, 559 
 ... 491 
 ... 569 
 ... 570 
 
 15, 538 
 
 10.3, 104 
 
 541, 547 
 
 ... 110 
 
 ... 548 
 
 ... 157 
 
 103, 111 
 
 ... 548 
 
 133, 452 
 
 603, 750 
 
 ... 568 
 
 ... 583 
 
 ... 492 
 
 ... 399 
 
 ... 557 
 
 495, 548 
 
 540, 542 
 
 ... 542 
 
 ... 735 
 
 ... 596 
 
 ... 550 
 
 ... 159 
 
 ... 575 
 
 .:. 548 
 
 591 
 
 Ship Young Nicholas 
 
 Zejihyr 
 
 Zephyrus 
 
 Zeta 
 
 Zodiac ... 
 
 Zollvereia 
 
 Shipley v. Kj'mer ... 
 Shipton V. Thornton 
 Sliort V. Iremonger 
 
 r. Simpson . . . 
 
 Shubrick v. Salmond 
 Sickens v. Irving ... 
 Sie\'eking v. Maas ... 
 Siffken i^. Wray ... 
 Sift'kinr. Allnutt ... 
 Sigard V. Eoberts ... 
 Simmons v. Svrih ... 
 Simonds v. White . . . 
 Simpson i;. Blues ... 
 
 V. Fogo ... 
 
 V. Mar^etson 
 
 539, 
 76, 
 
 'AGE 
 381 
 547 
 556 
 733 
 116 
 583 
 426 
 .390 
 159 
 275 
 208 
 308 
 308 
 406 
 
 184 
 
 133 
 
 2,412 
 511, 524 528, 534 
 
 546, 
 545, 
 110, 
 
 314, 
 
 89, 
 404, 
 
 Sims V. Bond 
 
 V. Brittain 
 
 Siordet v. Brodie . . . 
 Sjoerds v. Luscombu 
 Slater v. Willis ... 
 Slubey v. Hayward 
 Small V. Moates 
 
 230, 
 
 57^ 
 
 Smart v. Wolfe 
 
 Smith V. Bank of X. S. Wales 
 
 ■V. Bland . 
 -r. Brown 
 •r. Be Silva . 
 - V. Ferrard . 
 ■ V. Fuge 
 • V. Goss 
 ■V. Gould 
 ■V. McGuire.. 
 
 233, 
 238, 
 
 111, 
 118, 
 
 110, 113, 
 21, 
 
 V. Plummer 
 
 V. Readshawe 
 
 V. Scott 
 
 V. Shepherd 
 
 V. Sieveking 
 
 V. Steele 
 
 r. Thompson 
 
 V. Wilson ... 
 
 Smurthwaite v. Wilkins 
 Snee v. Prescott 
 
 234, 
 
 408, 
 114, 
 176, 
 200, 
 101, 
 
 332, 
 
 237, 
 
 201, 
 
 100 
 354 
 
 70 
 
 63 
 165 
 438 
 
 43 
 412 
 234 
 414 
 
 19 
 113 
 606 
 211 
 842 
 
 65 
 356 
 
 56 
 411 
 115 
 178 
 344 
 357 
 300 
 592 
 328 
 242 
 158 
 211 
 397 
 276 
 401
 
 TABLK OF CASES. 
 
 li 
 
 Siiell V. Mairyatl .. 
 Soamcs v. Loiiergaii 
 
 • V. Sugrue . . 
 
 Scares r. Ralin 
 
 V. Thornton.. 
 
 Sodergreen v. Fliglit 
 S0II3' r. Ratlibone .. 
 Solomons v. Nissun 
 Sontlianipton Steam Collier Co 
 
 Clark 
 
 Spaiglit V. Fannvorth 
 
 Spalding i-, Ending 
 
 Sparrow v. Bois 
 
 Spartali v. Beneckc 
 
 Speering r. Degravc 
 
 Speldt 1'. Leclmiere 
 
 Spence v. Chad wick 
 
 Splidt V. Bowles 
 
 Stiidhard v. Lee 
 
 St. All)au"s (Dnke ol') c. Shore 
 
 PAGE 
 
 ... 25.3 
 
 ... 20!) 
 
 ... G, 8 
 
 ... 114 
 
 137, 138 
 
 234, 323 
 
 ... 426 
 
 41!), 422 
 
 v. 
 
 195, 196, 352 
 
 srji 
 
 430 
 
 199 
 
 210 
 
 93 
 
 43, 48 
 200, 258, 328 
 
 176 
 
 183 
 
 204 
 
 Stainbank r. Penning 
 
 ' r. Shephenl 
 
 Stamnia v. Brown ... 
 Stanley v. Hales 
 Stanton v. Austin ... 
 
 r. Banks ... 
 
 V. liavman 
 
 106, 10!), 114 
 106, 10!), 113 
 .. 137, 138 
 
 70 
 
 .. 1S3, 249 
 
 155 
 
 46, 644 
 
 g 204 
 
 Norden r. Denip- 
 
 Stapleton 
 Stavers r. CurlLn 
 Steam Ship Co. 
 
 Bey 212 
 
 Steel r. Lester 22 
 
 r. Schoniberg 168 
 
 Steele 1-. Mart 184 
 
 Stephen r. Costa 322 
 
 '^ r. "Wilkinson ... ... 405 
 
 Stephen.son r. Dowsou ... 119, 600 
 
 Stevens r. Bagwell 17 
 
 Stevenson r. Blakelock 236 
 
 Stewart r. Hall 03 
 
 V. West India, &c.,Co. ... 508 
 
 Stilk r. Myrick 460 
 
 Stindt r. Roberts 242,359 
 
 Btitt t'. Warden 309 
 
 Stokes r. Came 56,76,91 
 
 V. La Riviere 409 
 
 Stonard r. Dunkin 414 
 
 Stonehouse r. Cent 97 
 
 Storer r. Gordon 203,397 
 
 Story, ex parte 912 
 
 fStoveld r, Hughes 414 
 
 Stowe V, Queruer 175 
 
 St raker r 
 Strelly v. 
 Stron" V. 
 
 Kidd 
 
 Winsou 
 
 Hart 
 
 Xatally 
 
 Tennant 
 
 Struck V, 
 
 Struguell V. Friedricksou . , 
 
 Stuart r. Isemouger 
 
 Styles r. Wardle 
 
 Sutton V. Buck 
 
 1'. Mitchell 
 
 Swainson r. Garrick 
 
 Swann v. Barber 
 
 Swanwick v. Sothern 
 Sweet I'. Pyni 
 Sweeting r. Darthez 
 
 Syeds ?'. Hay 
 
 Syers f . Jones 
 
 Symouds v. Hodgson 
 
 PAGE 
 
 ... 247 
 
 ... 60 
 
 ... 357 
 
 ... 325 
 
 ... 246 
 
 ... 190 
 
 ... 573 
 
 ... 184 
 
 3, 56, 538 
 
 ... 340 
 
 ... 287 
 
 351, 358 
 
 ... 414 
 
 ... 408 
 
 ... 250 
 
 ... 322 
 
 ... 210 
 
 ... 112 
 
 T. 
 
 Tait V. Levi 
 
 Tumvaco v. Lucas . . . 
 
 V. Sinip>on 
 
 Tanner v. Christian 
 
 v. PliilLips ... 
 
 V. Scovell ... 
 
 Tapley v. Martens . . . 
 Tajjscott V. Balfour 
 Tarrabochia v. Hickic 
 Tarrant v. Barnes . . . 
 Tate V. !Meek 
 Taylor v. Clay 
 
 r. Curtis 
 
 V. Dunbar 
 
 V. Kymer ... 
 
 r. Liverpool, (Sec, Co. 
 
 V. Trueman , . . • 427, 
 
 Teed v. Baring 
 
 r. Marten 
 
 Thacker v. Moates 
 
 Tharsis Sulphur* & Copper 
 
 Lini. V. Loftus 
 
 Thermolin v. Sands 
 Thomas v. Clarke . . - 
 
 V. Foyle . . . 
 
 V. Lewis ... 
 
 309, 
 
 ISO, 
 
 Thompson r. Beale, in vvwv 
 V. Brown 
 
 ... 285 
 
 ... 193 
 
 ... 234 
 
 ... 177 
 
 ... 23 
 
 ... 414 
 
 ... 355 
 
 243, 244 
 
 202, 207 
 
 ... 343 
 
 ... 223 
 
 ... 250 
 
 507, 519 
 
 ... 332 
 
 427, 429 
 ... 334 
 
 428, 429 
 ... 71 
 ... 56 
 ... 96 
 
 Co., 
 ... 535 
 ... 17 
 
 190, 352 
 ... 56 
 ... 63 
 ... 481 
 ... 177 
 
 d 2
 
 lii 
 
 TABLE OF CASES. 
 
 Thompson v. Collins 
 
 — — V. Domiiiy 
 
 V. Farmer 
 
 V. Findon 
 
 r. From ... 
 
 V. Gillespie 
 
 V. Havelock 
 
 - V. Inglis . . . 
 
 V. Ro'RTroft 
 
 ' r. Eoyal Ex. 
 
 V. Small . . . 
 
 ■ V. Smith . . . 
 
 r. Trail ... 
 
 r. "Whitmore 
 
 Thomson v. Davenport 
 
 Thoriiley r. Hebson 
 
 Thoroughgood v. Bryan 
 
 Thrift r. Youle .". 
 
 Tiis V. Byei*3 
 
 TOson V. "Warwick Gas Light Co 
 
 Tinckler v. Walpole 
 
 TindaU i;. Bell 
 
 V. Taylor . . . 
 
 Tobin V. Cra-vA-ford ... 
 Todd V. Eitchie 
 Tompson v. Smith ... 
 Toiilmin v. Anderson 
 Touteng v. Hubbard 
 Townley v. Crump... 
 Towse V. Henderson 
 Train v. Bennett ... 
 Tremenhere v. Tresilian . 
 Trent and Mersey Xav. Co. 
 Trewhella v. RoAve ... 
 Trinity House v. Clarke . 
 Tucker v. Cappes ... 
 
 i\ Humphrey 
 
 TuUy i'. Howling ... 
 
 I'. Terry 
 
 Turner t'. Scovell ... 
 V. Trustees of 
 
 Dock Co 
 
 Twentyman v. Hart 
 
 Twizell V. Allen 
 
 Tyne Imp. Co. v. Gen. Steam Xav. 
 
 Co 714 
 
 PAGE 
 
 488 
 
 i73, 416, 420 
 
 429 
 
 90 
 
 ... 583,589 
 202, 205, 282 
 ... 123, 460 
 ... 184,352 
 
 479 
 
 s. Co. ... 105 
 233, 234, 271 
 
 48 
 
 ... 233,436 
 
 332 
 
 ... 177,178 
 
 9 
 
 592 
 
 261 
 
 249 
 
 176 
 
 56 
 
 591 
 
 210, 233, 436 
 
 358 
 
 138 
 
 19 
 
 137 
 
 439, 440, 450 
 
 410 
 
 196 
 
 485 
 
 5 
 c. Wood 327 
 
 21 
 
 29,225 
 
 526 
 
 409, 410, 411 
 
 202 
 
 ... 193,278 
 
 412 
 
 Li verpool 
 ... 267,411 
 
 23 
 
 528 
 
 Underwood v. Miller 
 
 — ^ V. Eobertson ... 
 
 48 
 5 
 
 V. 
 
 Yalente r. Gibbs ... 
 Valentine v. Cleugh 
 Valieri v. Boy land ... 
 Vallejo V. Wheeler 27, 29, 
 
 Valpy V. Gibson ... 
 Van Baggen v. Baines 
 Van Casteel v. Booker 
 Vanderplank v. Miller 
 Van Omeron v. Dowick 
 Vanzeller v. Sanders 
 Vaughan v. Fitzhugh 
 Veedon v. "Wilmot ... 
 Velasquez (Owners of) v. 
 
 Ceylon (OwTiers of) 
 Velthasen v. Ormsley 
 Veunall v. Garner ... 
 Vertue v. Jewell . . . 
 Vickers v. Hertz ... 
 Victoriia v. Clevc ... 
 Vinkerstone v. Ebden 
 Violet V. Blague 
 Vlierboom v. Chapman 
 
 W. 
 
 Wagstaff V. Anderson 
 Wahlberg v. Young 
 "Wainhouse v. Cowie 
 Wait r. Baker 262, 265, 
 Wake V. Harrison ... 
 Walker v. The United In 
 Wallace v. Breeds ... 
 
 -y. Fielden... 
 
 Walley v. Montgomery 
 Walpole V. Ewer ... 
 Walshe v. Provan ... 
 Walthew v. Mavrojani 
 Ward V. Beck 
 
 r.Bek 
 
 V. Felton 
 
 r. McCorkill ... 
 
 Wardell v. Mourillyan 
 Waring r. Cox 
 Warren v. Peabody. . . 
 
 V. Shirreff ... 
 
 Warwick f. Scott ... 
 
 PAGE 
 
 .. 183, 250 
 
 581 
 
 260 
 
 137, 138, 220 
 221, 225 
 
 274 
 
 205 
 
 26S, 271, 416 
 
 591 
 
 311, 312, 313 
 
 360 
 
 92 
 
 302 
 
 Star of 
 
 160 
 
 579 
 
 592 
 
 271, 401, 420 
 
 433 
 
 302 
 
 298 
 
 579 
 
 ... 315, 382 
 
 254 
 
 858 
 
 ... 303,305 
 274, 275j 410 
 
 177 
 
 <. Co. ... 502 
 
 414 
 
 108 
 
 .. 270,406 
 
 5,34 
 
 70 
 
 ,.. 501, 510 
 
 23 
 
 48 
 
 359 
 
 ... 548, 549 
 
 324 
 
 272 
 
 193 
 
 368 
 
 300
 
 TABLE OP CASKS. 
 
 liii 
 
 Watkinson i: Bernarili>iton 
 
 Watson V. Christie 
 
 Waugli V. Morris ... 
 
 Way r. Milestone 
 
 Weal r. King 
 
 Webb r. Thompson 
 Webster r. Seekamp 
 AVeddeiburn v. Bell 
 Wegener !•. Smith ... 
 Weguelin r. Cellier 
 Weir r. Aberdeen ... 
 Wells r. Osman 
 Wentworth v. Outhwaite . 
 WesterdcU r. Dale ... 
 We.stland r. Robinson 
 Weston r. Wright ... 
 Wheeler r. Thompson 
 ^Vliite n Crisp 
 
 V. Mattison ... 
 
 r. Parkin ... 
 
 V. Wilson ... 
 
 Whitehead r. Anderson 
 Whitehouse r. Frost 
 Whitwell V. Perriu ... 
 Wiggins V. lugleton 
 
 . V. Johnston 
 
 Wigglesworth v. Dallison . 
 Wiley V. Crawford ... 
 Wilkins v. Bromhead 
 
 r. Carmichac'l 
 
 Wilkinson f. FrazfV 
 
 V. Wilson 
 
 Wilksr.Back 
 
 "Williams v. The African Steam Co 
 
 r. Allsiij) 
 
 r. Barton 
 
 V. Lon. Ins. Co. ... 
 
 V. Shee 
 
 AVilliamson v. Page. . . 
 
 V. Wilson 
 
 Wilmshurst v. Bowker 
 Wilson V. Bank of Victoria 
 
 r. Cutting 
 
 r. De Zulueta 
 
 r.\GE 
 ... 101 
 . 124, 125 
 ,. 182, 362 
 
 (J8 
 
 TO 
 
 301 
 
 92 
 
 281 
 
 . . 242, 359 
 
 358 
 
 .. 284, 287 
 
 .. 471,491 
 
 .. 405, 409 
 
 20, 100 
 
 352 
 
 92 
 
 490 
 
 ,.. 282,593 
 
 464 
 
 177 
 
 459 
 
 409, 411, 415 
 
 414 
 
 02 
 
 478 
 183 
 210 
 47 
 2 
 101 
 451 
 311 
 170 
 745 
 
 23 
 
 420 
 
 528 
 
 306 
 
 92,98 
 
 120 
 
 262, 263, 274 
 
 506 
 
 69 
 
 177 
 
 323, 
 
 46i 
 
 90, 
 
 Wilson V. Heather . . , 
 
 )'. Hicks 
 
 V. Kymer . . . 
 
 r. Lnlueter... 
 
 r. Miller 
 
 r. Rankin 
 
 — t7. Wilson 
 
 Wilton V. The Atlaiitic Royal 
 
 Co 
 
 Windle r. Barker 
 
 Winter, c.c jxtrfe 
 
 AViseman v. Vandeput 
 
 Withers v. Lys 
 
 Wolf V. Summers 
 
 AVoodr. Bell 
 
 r. Creditors of Weir 
 
 V. Hamilton ... 
 
 1'. Tassell 
 
 r. Dicksuu 
 
 V. Foderiiigliam 
 
 V. Forster . . . 
 
 313, 340, 858 
 
 306 
 
 19 
 
 Woods r. Russell . . . 
 WooUey V. Reddolien 
 Worms r. Storey ... 
 Worsdell, Tie 
 "Wright V. Campbell 
 
 V. Hunter . . . 
 
 V. Lawes . . . 
 
 Yallop, ex parte 
 Yates V. DulV 
 
 V. Hall 
 
 V. Meynell 
 
 r. Railston 
 
 V. White 
 
 Young, ex parte 
 
 V. Brander 
 
 V. Fewson 
 
 r. Moeller 
 
 V. Turinc: 
 
 Z. 
 
 Zagury v. Furnell 
 
 Zuinger v. Sarauda 
 
 Zwilchenbart v. Henderson 
 
 P.VGE 
 ... 48 
 
 200, 344 
 
 358, 359 
 ... 455 
 ... 313 
 ... 137 
 ... 23 
 
 Mail 
 ... 160 
 ... 180 
 ... 48 
 ... 401 
 ... 414 
 166, 323 
 2 
 ... 101 
 ... 101 
 ... 414 
 
 2, 3, 4, 44 
 ... 182 
 ... 309 
 ... 410 
 ... 418 
 02, 71 
 ... 411 
 
 43, 45 
 164, 213 
 ... 460 
 ... 224 
 ... 224 
 ... 593 
 64, 46r 
 21, 70 
 ... 165 
 ... 242 
 ... 11 
 
 414 
 414 
 358
 
 THE LAW 
 
 ov 
 
 MERCHANT SHIPS AND SEAMEN. 
 
 PART THE FIRST. 
 
 CHAPTER I. 
 
 OF THE OWNERS OF SHIPS IX GENERAL : THE MODES BY WHICH PROPERTY 
 IN THEM IS ACQUIRED; THE RIGHTS AND LIABILITIES ATTACHED TO 
 it; AND HEREIN, 
 
 Sect. 1. OJ Title hj Building and Pto'chase, p. 1. 
 
 2. jBy Purchase from the Master, and of his Av.thoritj to sell, p. 5. 
 
 3. Of Title by Capture, p. 16. 
 
 4. Of the Liabilities of Oiciers of Ships for Repairs done, or Stores supplied to 
 
 them, p. 20. 
 
 5. Of the Liabilities of Charterers and Owners, pro tempore, of Ships, p. 21. 
 
 6. Of the Rights and Liabilities of Mortgagees, p. 22. 
 
 7. The Liabilities of Owners and Charterers of Ships further considered, p. 25. 
 
 1. Of Title by Building and Purchase («). 
 
 [One or more persons may acquire the property of a ship by 
 building it at tlieir expense, or by purchasing it of another who has 
 authority to dispose of it. Upon the death of the owner, liis interest 
 devolves upon his executors or administrators {b) ;] it is transmitted 
 to a husband on his marriage with the owner, and to trustees on the 
 owner's bankruptcy or insolvency. [In the case of purchase, it is 
 necessary that the person who takes upon him to sell should have 
 power to do so (c) ; for although a sale of other goods by the person, 
 who is in possession of them, does in many cases vest the property in 
 the buyer, even when the seller himself has neither property in them 
 nor authority to dispose of them, the same cannot take place with 
 respect to ships, as there is no open market [d) for the sale of them. 
 Indeed, this species of property appears from very early times to have] 
 
 (rt) As to its being illegal to build or (6) The parts within brackets are the 
 
 eqiiip ships to be employed in the military same as in the 5th edition of this work, 
 
 or naval service of any foreign state at war See Preface to this edition, 
 with any friendly state, see the Foreign (c) The Perseverance, 2 C. Kob. 239. 
 
 Enlistment Act, 1870 (33 & 34 Vict. c. 90). (d) Hooper v. Gtimm, h. K. 2 Ch. 290.
 
 2 OWNEES OF SHIPS. 
 
 Part I. [been evideuced by written documents, and at present always is so, 
 "" which other movable goods rarely are ; and therefore the buyer has 
 in this instance the means of ascertaining the title of any person who 
 offers to sell, and can seldom be deceived except by his own fault.] 
 Contract for In general, under a contract for building a ship, or making any- 
 buUding. thing uot existing in specie at the time of the contract, no property 
 vests in the purchaser during the progress of the work, nor until the 
 vessel or thing is finished and delivered, or at least ready for delivery, 
 and approved of by the purchaser, even although the contract con- 
 tains a specification of the dimensions and other particulars of the 
 vessel or thing, and fixes the precise mode and time of payment (a) . 
 But this is a question of the intention of the parties to be ascertained 
 from the building contract. 
 
 In the case of TFood v. Bell, supra, it was held that steam 
 engines designed on a peculiar plan, for the reception of which an 
 engine room had been adapted, as also iron plates, angle irons and 
 plankings pre-arranged for different parts of a ship, though not 
 riveted or fastened to her^ passed as against the assignees of a bank- 
 rupt builder to the purchaser. In this case Lord Campbell, C. J., 
 said, " When a man contracts with another to make an article 
 for a given price, the general rule is, in the absence of all cir- 
 cumstances from which a contrary conclusion may be inferred, 
 that no property passes in the chattel until it be completed and ready 
 for delivery : oil the other hand, where a bargain is made for the 
 purchase of an existing ascertained chattel, the general rule, in the 
 same absence of opposing circumstances, is that the property passes 
 immediately to the vendee, that is, that there is at once a complete 
 bargain and sale. But these general rules are both and equally 
 founded on the presumed intention of the parties. If in the former 
 there are attendant circumstances from which the intention may be 
 inferred that the property shall pass in the incomplete and growing 
 chattel as the manufacture of it proceeds, or even in ascertained 
 materials from which it is to be carried to perfection, that intention 
 will be effectuated ; and in the latter, if it appear that the parties 
 intended to postpone the transfer of the property till the payment of 
 the price of the performance of any other condition, such intention 
 will be upheld in the courts of law.^^ 
 Bill of sale Doubts have been entertained [b) whether, at common law, a 
 
 of ship. delivery by parol without any bill of sale or other instrument of transfer, 
 
 (a) Mv.cMow V. Mangles, 1 Taunt. 318. Spence, 4 Adol. & El. 448 ; 6 Ncv. & Man. 
 
 Simmons v. Swiff, 5 B. & C. 857. Mode 416. WilHns v. Bromhead, 6 M. & G. 
 
 V. Thwaites, 6 B. & C. 3S8. Goode v. 963. Iiddv.Fairlanks,22.1,. i.C.V.20G, 
 
 LangUy, 7 B. & C. 26. Atkinson v. £ell, Laidler v. Burlinson, 2 M. & W. 602. 
 
 8 B. & C. 277. Carrvtliers v. Fayne, 5 Baitershy v. Gale, 4 Adol. & El. 458. 
 
 Bing. 270. Dixon v. Yates, 5 B. & Ad. 813. Bell's Principles of the Law of Scotland, 
 
 Wood V. Bell, 5 E. & B. 772 ; S. C. in error, p. 486. 
 
 6 E. & B. 355 ; 25 L. J. Q. B. 148. The (b) See Judge Story's note to this section 
 
 Anglo-jEgi/piian,^-c. Co. V. Iiennie,4:i'L. J. in the American edition, and see 1 Inst. 
 
 C. P. 130. Baker v. Gray, 17 C. B. 11 b. 182 a. Meggadow v. Solf, 12 Mod. 
 
 462. Goss V. Quinfon, 3 M. & (i. 825. Eep. 15. Zetludier's case, 2 Salk. 443. 
 Woods V. Russell, 5 B. & A. 942. Clarke v.
 
 1. TITLE BY PURCHASE. i 
 
 would have been sufficient to pass a good title to a ship. Lord Chap. 1. 
 Kexyon'j in the case oi Rolleston v. Hibbert {c) , declined to give an 
 opinion upon the point; and Lord Stowell [d], in the case of the 
 Sisters, expressed himself as follows : — '' It has been contended in 
 argument that the eftcct of a bill of sale alone would not be material, 
 because this was a foreign ship, in respect of which it might not be 
 requisite that it should pass by a bill of sale. A bill of sale is the 
 universal instrument of transfer of ships in the usage of all maritime 
 countries, and not a peculiar title-deed, or conveyance known only to 
 the law of England. It is what the ^Maritime Law expects; what 
 the Court of Admiralty (e) Mould in its ordinary practice require; 
 and what the Legislature of this country has now made absolutely 
 necessary, with regard to British subjects, by the regulations of the 
 statute law.''' 
 
 Ships registered under the Merchant Shipping Acts arc now trans- 
 ferred by bill of sale and in no other way (/). 
 
 [The writci's (//) on maritime law inform us, that if a ship be sold 
 with the tackle, apparel, furniture, and other instruments thereto 
 belonging, the ship's boat is not conveyed by these words ; and they 
 found their opinion upon the authority of those parts of the Digest 
 in which it is said that the boat is not a part of the ship (A), or of its 
 apparel (/).] 
 
 In the case oi Ho skins v. Pickersgill {k), a question arose whether 
 fishing tackle was included under the terms " ship furniture,^' &c., 
 in a policy of insurance on a ship, employed in the Greenland fishery. 
 Lord M.wsFiELD said, there was no doubt that the boats, rigging, 
 and stores belonging to the ship were included, but that as to fishing 
 tackle it must depend in insurance cases on the usage of trade. 
 
 In a case (/), decided in the Court of Admiralty, and which after- 
 wards came before the Court of Queen's Bench, the principle of con- 
 struction applicable to general words of this description, has been 
 more clearly exempliticd than on any former occasion. The ship 
 Dundee, on her voyage to the Greenland fishery, having on board 
 the necessary stores and implements for the taking of whales and 
 
 (c) 3 Term Rop. 40G. (/) See;>o.9/,Cliap.2. Liverpool Borough 
 
 {d) 5 Rob. A. R. 155. See also Atkin- Bank v. Turner, 1 John & H. 169; 2 I)e G. 
 
 son V. Maling, 2 Tenu Rep. 4G2. 406. F. & J. 502. See Woods v. Russell, 5 li. & A. 
 
 Sutton V. Buck, 2 Taunt. 301. Kent's 912; Ooss v. Quinton, i Scott's New 
 
 Commentaries on Commercial and Mari- Rep. 471. 
 
 time Law, Eilinburgh edition, p. 127. (g) Roccus, note 20. Stracclia, De Xa- 
 
 (e) By the Judicature Acts, the then ex- vibus, pars. 2, no. 12. Molloy, De Jure 
 
 isting superior courts, including the High Marit. book 2, ch. 1, s. 8. The latter adds, 
 
 Court of Admiralty, are united, and con- that if a ship commit piracy, the boat is not 
 
 stitute one supreme Court of Judicature. foi Jeited, and refers to a case in Roll. Ab. 
 
 This court consists of two permanent divi- for his authority ; and Beawes has followed 
 
 sions, one of which is called Her Majesty's the words of Molloy ; but in the case 
 
 High Court of Justice. This High Court referred to the boat is not mentioned. See 
 
 is divided into five divisions, one of which Shannon v. Owen, 1 Man. & Ry. 392. 
 
 is called the Probate, Divorce, and Ad- {h) Dig. 21, 2, 44. 
 
 uiiralty division. This division, for the (/) Dig. 6, 3, 1. 
 
 sake of brevity, is frequently in this work \k) Mai'sh. Ins. by Shee, 5th ed. 568 ; 
 
 called the Court of Admiraltv. See the Park 97. 
 
 Preface to this edition. ' (/) The Dundee, 1 Hasrg. Rit). 100. 
 
 B 2
 
 4 OWNERS OF SHIPS. 
 
 Part I. other fish^ and procuring and bringing home in casks the oil and 
 - — ' blubber, having run foul of another vessel, the question -^as, 
 ■whether those stores, implements, &c., were to be understood as 
 forming part of the ship within the meaning of the first section of 
 the 53 Geo. 3, c. 159, by which the responsibility of shipowners, in 
 case of loss or damage occurring without their fault or privity, was 
 limited to the value of their ship and the freight due, or accruing 
 due, for and during the voyage in prosecution, or contracted for at 
 the time of the happening of such loss or damage. It was decided 
 that the first section of that statute was to be construed as if the 
 words "^ with all her appurtenances," which occur in many sections 
 of tlie Act, had been inserted in it, and that whatever was on board 
 of a ship for the object of the voyage and adventure on which she 
 was engaged, belonging to the owner, constituted a part of the ship 
 and her appurtenances within the meaning of that Act, and that the 
 owner was liable to the extent of the value thereof. 
 
 It seems also, from the observations of the court, in Gale v. 
 Lain'ie, 5 B. & C. 156, that the fittings of a packet, or the guns of 
 a privateer, Avould be incladed in the word " appurtenances." The 
 Master of the Kolls, in one case, appeared to approve of the 
 opinion of Lord Stowell and Lord Eldon, to be collected, as he 
 thought, from their judgments, that the word '' appurtenances" 
 included all such matters as are incidental to the working of a 
 ship [a) ; and in the case of IVoods v. Russell [b), the rudder 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, were considered to pass with the ship. 
 
 Ballast, in au early case, was liekl not to be furniture in a 
 ship (c) , for although in some cases necessary, it is not always so, 
 and " ships may be laden with such merchandises as are convenient 
 ballast of themselves," with advantage to the shipowner. In Lano v. 
 Neate (c?), a ship was conveyed with all stores, tackle, apparel, &c., 
 but no mention was made of "kentledge,^' or permanent ballast, 
 consisting usually of pigs of iron cast in a particular form, or other 
 weighty material, which, on account of its superior cleanliness and 
 the small space occupied by it, is now frequently preferred to 
 ordinary ballast ; but Lord Ellenborough ruled that it could not be 
 considered as part of the ship^s necessary stores, since common 
 ballast might have answered the same purpose. 
 Juiisaictiou The Court of Admiralty has jurisdiction to detain a vessel, in a 
 of Court of suit instituted by the real owner against a mere wrongdoer ; and 
 Adnnralty. ^^g court had such powcr before the recent enactments, extending 
 the jurisdiction of this court (e) . 
 
 {a) Langton v. Horton, Leg. Ob., vol. 23, {d) 2 Stark, 105. See Langton v. Rorton, 
 
 p. 524. Feltham v. Clar/c, 1 De Gex & S. 5 Beav. 9. 
 
 812. (e) By the court, in the matter of Mati- 
 
 (b) 5 B. & Aid. 942. chard and others, 2 Barn. & Cress. 2-4-1 j 
 
 (f) Kgnfer's case, 28 & 29 Eliz. C. P. 1 Hag":. 311. See the Sisters, 4 Rob. 
 
 Leon. 46, 47. Adm. Rep. 275; 5 Kob. Adm. Rop.
 
 2. PURCHASE FROM MASTER. 
 
 The Court of Admiralty uill decree possession to a party who has Chap. 1. 
 been by force, violence, or fraud dispossessed of his vessel (/). 
 
 As to the jurisdiction of the Court of Admiralty in an action for 
 possession of a foreifi^n ship between foreigners, see the Evangelistria, 
 46 L. J. Ad. 1 ; the Agincourt, 47 L. J. Ad. 37; sec the Renter, 
 1 Dod. 23 ; the Experiment, 2 Dod. 38. 
 
 2. Of Title by Purchase from the Master, and of his Authority 
 
 to Sell {g). 
 
 [The master of a ship possesses, as more fully appears in different Master's 
 parts of this treatise, every power necessary for the employment and ■'^"tlionty 
 navigation of the ship ; but he has not, unless in a case of extreme 
 necessity, authority to sell the ship ; and he is bound seriously and 
 deliberately to try every other expedient to raise money, before dis- 
 posing of the ship or any part of the cargo (//). And with a view 
 probably to prevent the opportunity of fraud, wliich the allowance of 
 this power to him might afford, several of the foreign {i) ordinances 
 expressly declare, that he shall not sell the ship without a special 
 authority for that purpose from the owners ; at the same time, how- 
 ever, authorizing him, in case of necessity, to borrow money upon 
 the credit of the ship or its furniture, with the assent of his crew. 
 In conformity to these regulations. Sir Matthew Hale, when 
 Chief Baron of the Exchequer, is reported to have decided upon a 
 case {k) referred to, and argued before him, that the sale of a ship by 
 the master did not convey the property to the buyer, although the 
 sale was made in a foreign country, in a case of inevitable danger, 
 the ship and tackle being beaten and broken, and no hope of saving 
 any part of them, partly on account of the tempest, and partly on 
 account of the barbarity of the inhabitants of the country, who 
 carried off everything that was cast on shore. Perhaps, however, 
 there might in this case be some circumstances, not noticed by the 
 reporter, which might lead the learned judge to doubt the absolute 
 necessity of a sale, or to think the buyer a party to the misconduct 
 mentioned in the book. In a case that came before the Court of 
 King^s Bench on the subject of hypothecation. Lord Holt is reported 
 to have said, " The master has no authority to sell any part of the] 
 
 155 ; the New Draper, 4 Rob. Adm. Rep. {g) See the Australia, 1 Swab. Adm. 
 
 287; the John, 1 Hagg. R. 342; the Rep. P. C, 480. 
 
 Johan and <S'«V_5r/«MM(f, Edwards' Rep. 242 ; (/t) Underwood v. Rolertson, 4 Camp, 
 
 the Valiant, 1 W. Rob. 64. See the Guar- 138. Alcockx. Royal Exchange Assurance 
 
 dian, 3 Rob. Adiu. Rep. 93 ; the Aurora, Company, 13 Q. B. 301. 
 
 3 Rob. Adm. Rep. 133 ; the Sisters, 3 Rob. (/) Consulat, bv Boucher, cap. 156. Laws 
 Adm. Rep. 213; the Partridge, 1 H.igg. of Oleron, art. l'; of Wisbuy, art. 13: of 
 81; the Fitt, 1 Hagg. Rep. 240. The the Hause Towns, art. 57. French Ordi- 
 Lagan, 3 Hagg. 418; t\iQ Neptune, Z Hagg. nance, liv. 2, tit. 1. Du Capitaine, art. 19. 
 132. See also, as to courts of equity, before Ordinance of Rotterdam, art. 165 ; 2 
 the Judicature Acts, Ridgway v. Roberts, Magcus, 107. 
 
 4 Hare, 109. (X) Tremenhere v. Tresillian, 1 Sid. 452. 
 (/) The Beatrice, 36 L. J. Ad. 9.
 
 OWNERS OP SHIPS. 
 
 Part I. [ship, and his sale transfers no property; hut he may hypothe- 
 cate'^ (g). And in a subsequent case (b), therein Lord Chancellor 
 CowpER decreed that the East India Company should pay to the 
 owner of a ship, purchased of the master at Bata^da for their use by 
 one of their agents, the difference between the real value and the sum 
 paid to the master, with interest thereupon at the rate allowed in 
 India (which decree was afterwards affirmed by the House of Lords) 
 his lordship took notice that the sale of the ship ivas not necessary : 
 the transaction, indeed, was a gross fraud between the master and 
 the agent of the company, but without their privity. By the Con- 
 solato del Mare, the master is allowed to sell the ship if worn out by 
 age (c) . And it is said by one of the earliest English reporters, that 
 " the master of a ship may in some cases sell the ship, although it 
 does not belong to him, as in the case of famine^^ {d), kc. This 
 author does not cite the decision of any court as an authority for the 
 observation. The exception, however, of cases of extreme necessity 
 rather fortifies than weakens the general rule; and no person can 
 safely purchase a ship of the master in any case which does not 
 clearly fall Avithin the principle upon which the exception is founded ; 
 and such a case will rarely happen. And although the master be 
 himself a part-owner of the ship, yet will not his sale thereof be 
 good for more than his own part, for the interest of part-owners is so 
 far distinct, that one of them cannot dispose of the share of another; 
 whereas, in articles of ordinary sale, one partner may in general 
 transfer the whole property, if the transaction be without fraud. 
 
 Since the publication of the first edition of this book, this power 
 of the master has been a subject of judicial consideration in several 
 courts. 
 
 " In the first place,-" said Sir William Scott, in the case of an 
 American ship {e) unreseiwedly sold by her master, at Sligo, and 
 afterwards arrested, on behalf of her owners, by admiralty process^ 
 " it must be shown that there was a necessity for the sale, and then 
 it remains to be considered whether it was such as by law would give 
 the master a right to sell. That such a case may arise I am not 
 prepared to deny. Suppose, for instance, a ship in a foreign country, 
 where there is no correspondent of the owners, and no money to be 
 had on hypothecation to put her into repair. Under these circum- 
 stances, what is to be done ? The ship may rot before the master 
 can hear from his owners ; and therefore, if the necessity were clearly 
 shown, with full proof that everything was done optima fide, and for 
 the real benefit of the owners, the court might be disposed to sustain] 
 
 (a) Johnson v, Shijjpen, 2 Lord Haym. ZapyaiL- v. Bmrows.lS'MooveV. C.Ca.lS2} 
 
 984. Coleqii id 31arine Insurance Company wBor- 
 
 (l) Elkins V. East India Company, 1 P. teanx, L. R. 6 P. C. 319 ; 3Iaebi'.rnv. Leckie, 
 
 Wms. 392 ; 2 Bro. Pari. Cases, 72. tried before Lord Chief Justice Dallas, 
 
 (c) By Boucher, cap. 156. March 5th, 1822, 1 Biii^. 243. See also 
 
 {d) Jenkin's Centuries, p. 155. — Obscr- Soames v. Sugrue, 4 C. & P. 2S2 ; Gardner 
 
 Vation at the end of case 17. v. Salvador, 1 M. & K. 116 ; Moyal Ass. 
 
 (e) The Fanny and Elmira, Ed%\-. Ad. Co. v. Idle^ 3 Bred. & B. 151, 8 Taunt. 755. 
 Rep. 117. See Reid v. Darly, 10 East. 148 ;
 
 2. PURCHASE FROM ^[ASTEK. 
 
 [a purcliasc so madc.'^ And again, '^ In a case of that description, I Chap. 1. 
 say, strongly pnt, where tliere was no ground for suspicion, although 
 I do not know that such a power is given to the master by the general 
 maritime law, yet, feeling its expediency, this court would strain 
 liard to support the title of the purchaser : but tliere must be the 
 clearest proof of the necessity ; it must be shown, not only that 
 the vessel was in want of repair, but likewise that it was impossible 
 to procure the money for that purpose."] 
 
 In a case of Reid v. Bonham (/), Mr. Justice Richardson* said, " as 
 to the necessity of sale, it is certain the assured has no right to sell, 
 except in a case of strong necessity ; perhaps he is not confined to a 
 case of physical necessity, but the necessity must be siich as would 
 induce a prudent man, even uninsui'cd, to sell. AVliat, then, was the 
 necessity here ? The captain contents himself with 1,200/. when he 
 had 12,000/. at stake, so that, if he had been uninsured, the loss 
 must have been 10,800/., with the exception of the amount for which 
 the ship's stores miglit have sold ; whereas the loss would have 
 amounted to no more than 5,000/., if the ship had been repaired at 
 that expense, and had completed her voyage. There was, it is true, 
 some difficulty in raising money, Calcutta being an expensive, though 
 a good place for repairs, and the captain attempted, without success, 
 to borrow on hy])othecation of the ship, but he never oflercd to hypo- 
 thecate the cargo, as he ought to have done. It appears a strong 
 thing to say, that he would have sold the ship for 1 ,200/. if he had 
 been uninsured. My Lord Chief Justice and my learned brothers 
 seem to think that the jury have concluded this point. That the 
 captain acted honourably there can be no doubt ; but I should wish 
 it to be again considered, whether he acted for the benefit of all con- 
 cerned.'^ This opinion of ]Mr. Justice Riciiardsox is consistent with 
 all the cases above cited. The difference between him and the rest of 
 the court was on the circumstances of the particular case, not on the 
 principle of its decision. 
 
 In the case of Robertson v. Clarke {(/), in which the Court of 
 Common Pleas considered a sale by the captain justifiable, it 
 appeared that the ship, having been so shattered in a storm that 
 the expense of repairing her would have exceeded her original value, 
 was sold bond fide for the benefit of all concerned, and being brought 
 by the purchasers to a place where she might have been completely 
 repaired, had it been deemed advisable, was there broken up. Lord 
 GiFFORD, C. J., in delivering the judgment of the court, said, ''This 
 principle may be clearly laid down, that a sale can only be permitted 
 in case of urgent necessity ; that it must be bond fide for the benefit 
 of all concerned, and must be strictly watched. Nothing can now 
 impeach the correctness of this principle ; and the only question here 
 is, Did the evidence estabHsh that urgent necessity ? The jury have 
 
 (/) 3 Bml. L Bhig. U7 ; 6 Moore, 397. 4 C. B. 168 j Knight v. Faith, 15 Q. B. 
 {g) 1 Biug. 415; 8 Moore, 622. Aud 649; aud the /Sej^retZo, 1 E. & A. 36. 
 see the judgment in Ireland v. Thompson,
 
 OWNEHS or SHIPS. 
 
 Part I, come to the conclasion that it did, and after hearing the notes of the 
 learned Judge^ who presided, I am of the same opinion. It is not 
 disputed that the sale was bond fide, and it is clear that it was for 
 the benefit of all concerned. 1 agree that it is not sufficient to show 
 that the sale was bond fide, and for the benefit of all concerned, 
 unless it be also shown that there was urgent necessity for its being 
 resorted to ; but that having been satisfactorily proved in the present 
 instance, the verdict cannot be disturbed on that ground.^'' 
 
 The cases of Cambridge v. Anderton [a), Allen v. Sugrue {b), 
 Irving v. Manning (c), Doyle v. Dallas (d), Gardner v. Salvador fe), 
 and Soames v. Sugrue (/), all of them actions on policies of insurance, 
 in which the propriety of sale by the master was discussed as inci- 
 dental to the question whether or not a total loss had occurred, may 
 be usefully consulted on this point. 
 
 "A captain,'^ said Tindal, C. J., addressing the jury in the case of 
 Soames v. Sugrue, " has no power to sell except from necessity, 
 considered as an impulse acting morally to excuse his departure 
 from the original duty cast upon him of navigating and bringing 
 back the vessel. If he has no means of getting the repairs done in 
 the place where the injury occurs; or if, being in a place where they 
 might be done, he has no money in his possession, and is not able to 
 raise any, then he is justified in selling, as the best thing that can be 
 done. In the present case, it appears that the vessel was in a place 
 where the repairs could be done, and where money could be obtained, 
 although at an extravagant expense. Still the question is. Whether 
 the expenditiu'C was so great that no prudent man, in the exercise of 
 a sound and vigorous judgment, would hesitate as to the propriety of 
 selling ? If you think that the owner himself, had he been on the 
 spot, uninsured, Avould, in the exercise of a sound discretion, have 
 repaired the vessel, or that if an agent of the underwriters had been 
 there, he, exercising such discretion, would have repaired, then this 
 captain ought certainly to have done so ; but if they would not have 
 done so, then I think this captain was not compellable to repair, 
 and the sale in such case will have taken place under a justifiable 
 necessity^' {g). 
 
 The rule established by those decisions has more recently been 
 elucidated and acted upon in causes of possession by a learned 
 
 (a) 2 B. & C. 691. {g) Tlie case of Soames v. Sur/rue is cited 
 
 {b) 8 B. & C. 565. with some degree of caution by Chancellor 
 
 (c) 6 C. B. 391. Kext for the position, that the inability of 
 
 (rf) 1 M. & Bob. 48. the master of an insured ship to raise money 
 
 {e) 1 M. & E. 116. See also Sid^wat/ v. for repairs in a place where but for his want 
 
 ^Roberts, 4 Hare, 113. of money they might be done, would justify 
 
 (/) 4 C. & P., 276. See also Green v. an abandonment of the ship to the under- 
 
 Rot/al Hx. Ass. Comp., 6 Taunt. 63. Farn- writers (1). I am not aware that this has 
 
 loorth V. Hijde, 34 L. J. C. P. 207, L. E. 2, been determined in any case by our English 
 
 C. P. 204. courts of justice, but it is conformable to 
 
 (1) Comm. on Com. and Mer. Law, Edlub. edit. 321. If there has been a want of 
 ordinary prudence in the owner in furnishing fmids or credit to the master, to enable
 
 2. PURCHASE FROM MASTEE. 
 
 judge of the Court of Admiralty (Dr. Lushixgtox), a portion of 
 whose judgmeuts in two cases, tlie details of which afforded much 
 opportunity of judicial discrimination, and in which he upheld the 
 
 Chax). 1. 
 
 Ihc doctrine of tlie most eminent of the 
 French writers on maritime Lnv. 
 
 Tlierc is some difficulty in understiindin;^ 
 how the liability of the underwriter can be 
 affected by the degree of credit which the 
 assured may enjoy in the Y>ort to which his 
 ship lias been compelled to resort for re- 
 pairs. The extent of the indemnity stipu- 
 lated in the contract of insurance against 
 " the \ycn\s of the seas," the fortune de iiier, 
 would apjiear to be the same, whatever may 
 be the opinion of foreign shipwrights of 
 the risk of the voyage in the course of 
 which repairs have become necessary, or 
 their estimate of the ability of the person 
 to whom they are to look for payment. 
 The certificate of registry of the ship 
 Glamorgan (see Beid v. Darhi/ anlc p. G) 
 may show that her owners ate merchants 
 of opulence, while the names on the certifi- 
 cate of the ship Grace (post 15) are un- 
 known to the cautious tradesman, who 
 requires to inspect that document before 
 he sets to work. Ought the signification 
 of terms in common use in mercantile in- 
 struments to contract and dilate according 
 to circumstances of this description ? It 
 has been held (2), that where a ship was 
 disabled by perils of the seas from ])ursu- 
 ing her voyage, and the master, to defray 
 the expense of repair, having no other 
 means of obtaining money, sold part of the 
 goods insured, and applied the proceetls to 
 the repairs, that this was not a loss of 
 goods by perils of the seas. From the 
 decision in several cases (3) that the loss of 
 a voyage could not make a constructive 
 total loss of a ship, it might be inferred 
 that the master, in the circumstances sup- 
 posed, ought to wait until he has com- 
 municated with his owners, and the means 
 of repairing their ship have been furnished 
 
 by them. It will be remembered, also, to 
 have been determined that a ship was not 
 seaworthy which sailed from Mauritius to 
 London, during the master's incapacity 
 from illness, without having a person on 
 board competent to supjily his place (4). 
 And there seems little difference in prin- 
 ciple between the case of a shi]) unprovided 
 with competent ofticers, and of a ship the 
 master ot which is despatclutl on a distant 
 and perilous adventure without cargo, or 
 credit, or the means of defraying the ex- 
 pense of that which in its own nature is no 
 more than a partial loss. 
 
 But these considerations canuot have 
 escai)ed the attention of the eminent 
 lawyers to whose writings I am about to 
 refer. Pothier exjjresses a somewhat 
 doubting opinion that a disabled ship, 
 capable of re]>air, which is obliged to take 
 refuge in a port where the means of repair 
 exist, but where the master has neither 
 money, credit, nor friends, may be con- 
 sideretl to have become so circumstanced 
 par fortune de mer, and therefore to be a 
 loss within the jxilicy. Emerigon (5), in 
 his Tniite des Assurances Maritimes, coin- 
 cides in that opinion, and it is also adopted 
 by Pardessus and IJoulay Paty (6). But 
 the commentator on the Ordoimance de la 
 Marine, A'alin, is the authority on whom 
 all these learne<l foreigners rely in support 
 of their position ; and his opinion is so 
 clear and unhesitating that he denies a 
 decision to the contrary, jironounced by 
 the Judges of the Court of Admiralty (7) 
 at Marseilles to be law, and thinks it must 
 have i)roceeded upon grounds which do not 
 appear from the report before him. 
 
 The case, as cited by Valin, was as follows : 
 On the 5th f)f September, 1754, Candole, 
 the master of the polacca St. Etienne, 
 
 him to make the necessary repairs, and the master is thereby deprived of the means of 
 obtaining funds or credit, an abatement cannot be made so as to claim against undei'- 
 writer as for a total loss. Amer. Ins. Co. v. Ogden, 20 NVend, 287. 
 
 (2) Sarquay v. Hobson, 2 B. & C. 7; 4 Hing. 131; 1 Y. & J. 317, S. C. See also 
 Powell v. Gudgeon, 5 M. & S. 413. Duncan v. Benson, 1 Exch. 545. 
 
 (3) Pole v. Fitzgerald, Willes' Rep. 641 ; 4 Bro. P. C. 439. Aiulerson v. WalUs, 2 
 M. & S. 240. Falkner v. Ritchie, ibid. 293. Thornley v. Hehson, 2 B. & A. 513. Boi/le 
 V. Dallas, 1 M. & R. 48. 
 
 (4) Clifford v. Hunter, M. & M. 103. 
 
 (5) See Emerigon, Tiaite des Assurances, tit. " InnaYigabilite," and Pothier du Contrat 
 d'Assurance, cap. 3, s. 1. 
 
 (6) Boulay Paty. Cours de Droit Commercial Maritime. " De I'lnnavigabilite." 
 
 (7) For the jurisdiction of the Judges of the Admiralty, see section 2, of title 2, of the 
 Ordounauce, " De la Competence des Juges de I'Amirautc."
 
 10 
 
 OWNEES OF SHIPS. 
 
 Part I. sale of ships by tLeir masters on the ground of necessity, cannot 
 — properly be omitted here : — 
 
 borrowed, ou bottomry aud the security of 
 his brother, a sum of 1,000 livres, from 
 Maurice Barratier, for a voyage to the 
 Levant. The maritime interest agreed 
 upon was 10 per cent, for six months, and 
 at the same rate for any longer period, not 
 exceeding three years. 
 
 After a year's voyage, Candole died, and 
 the command of the vessel devolved on the 
 mate Faudou. 
 
 In January, ITofi, the vessel arrived at 
 Cyprus, aud ou the 20th of that mouth the 
 crew presented a memorial to the French 
 consul, requesting that the ship might be 
 examined by surveyors, and offering to re- 
 embark if they should declare her to be 
 navigable. 
 
 The surveyors reported, that if the ship 
 were repaired, she might continue navigable 
 for several years. The repaii's were estimated 
 at 12,000 piastres. 
 
 On the 23rd of the same month, the con- 
 sul issued an order, by which Faudou was 
 required to proceed forthwith to the repairs. 
 Faudou remonstrated, excusing himself on 
 the ground that he could not procure money 
 for the purpose. The consul, notwithstand- 
 ing, repeated his order. 
 
 On the 3rd of February, Faudou, having 
 in vain endeavoured to borrow money on 
 any terms, declared " that he abandoned 
 the polacca to be disposed of by the consul 
 as he might think best for the advantage of 
 the parties interested." 
 
 The consul, accordingly, sold the ship 
 for 901 piastres, -with which he paid the 
 wages of the crew. The vendee repaired, 
 and afterwards sent her to sea. 
 
 On the 22nd of June, of the same year, 
 an action was commenced by Jean Baptiste 
 Ode, the assignee of Maurice Barratier, by 
 whom the money was lent on bottomry, 
 against the representatives of Candole and 
 his brother, to recover the 100 piastres 
 which they had borrowed, with the mari- 
 time interest agreed upon, up to the time 
 the polacca was sold. 
 
 The defence was, that the ship, having 
 been declared innavigable, she had been 
 abandoned to the insurers and the len- 
 ders on bottomry, who had therefore no 
 claim beyond the amount realised by the sale. 
 
 To this the plaintiff replied, lirst, that 
 the captain had not submitted a considat, 
 or formal report, to the consul, and that by 
 reason of that omission, there were no 
 means of ascertaining whether the con- 
 
 dition of the vessel, at the time of her sale, 
 was the result of her vice propre or of 
 perils of the sea. 
 
 Secondly, that the vessel had not been 
 declared absolutely innavigable, but only 
 innavigable without repairs ; that Faudou's 
 inability to procure money was his own 
 affair, oi', at all events, a circumstance which 
 could not affect the insurers or lenders on 
 bottomry. 
 
 On this state of facts the court decreed 
 that the representative of Candole, and his 
 brother, were liable to pay the bottomry 
 loan of 1,000 livres, with maratime in- 
 terest. 
 
 " I don't doubt," continues Valiu, " that 
 the decision was right, aud that it proceeded 
 upon the ground that Faudou, the substi- 
 tuted captain, not having made a formal 
 report to the consul, or taken care to have 
 inserted in the surveys the fact that the 
 iunavigability of his ship had been occasioned 
 by bad weather and sea damage, the pre- 
 sumption was, that it proceeded from her 
 own inherent defects." 
 
 "JHad his papers been regular, the judg- 
 ment could not have been in favour of the 
 lender on bottomry, for the inability of 
 Faudou to borrow money for the purpose of 
 repairs, placed him in the same position as 
 if the means of repairing the vessel did not 
 exist in the place where she lay." 
 
 " It is true, that it would be dangerous to 
 admit such an excuse without investigation, 
 for the captain might allege it falsely, to the 
 injury of the assurers and lenders on bot- 
 tomry. Certainly it would deserve no 
 attention, if there were goods on board the 
 ship which might have been sold. But 
 Faudou was a substituted captain ; and it is 
 further to be particularly noted, that the 
 ship was in a foreign country, between which 
 and the residence of his owners there was 
 probably no opportunity of correspondence, 
 and where, therefore, it is by no means won- 
 derful that the captain of a ship, without any 
 cargo, should find himself also without 
 credit." 
 
 " Under such cirenmstances, I repeat, the 
 case is the same as if there had been no 
 materials or workmen iu the place to exe- 
 cute the repairs; so that if Faudou had done 
 the needful to prove that the bad condition 
 of his ship did not proceed from her inherent 
 defect, the bottomry lender must have failed 
 in his suit, without prejudice to his claim 
 upon the proceeds of the sale " (1). 
 
 (1) Valiu, Comm. sur rOrdonnauce, liv. 3, tit. 6, Jtrt. 46.
 
 2. rUECHASE FROM MASTER. 
 
 11 
 
 What, said the leaniecl judge, is a summary of this case (a) ? 
 The master leaves England with a ship in such a state that 
 after a few -weeks she is in want of repair; he goes to the Savannah 
 without any credit, even for the necessary expenses of the ship, given 
 to him by the owner, and his owner does not appoint any agent 
 Avhatever at the port of lading ; a bill is drawn for those necessary 
 expenses ; the owner refuses to pay it, and does not pay until nearly 
 a year after. The ship grounds on a mud bank in consequence of a 
 hurricane, and havingbccn got off, drives again ashore, from which posi- 
 
 Chap. 1. 
 
 In our courts, as will be seen from the 
 decisions cited iu the text, the authority of 
 the master to sell his ship has been most 
 frequently the subject of consideration iu 
 cases of insurance, many of which have been 
 discussed on the assumption that the same 
 circumstances which would justify the sale 
 of an uninsured ship, as between the owners 
 and the master, and sustain the title of a 
 purchaser from him, will also suffice to esta- 
 blish a claim on the part of the owners of 
 an insured ship, for a total loss against un- 
 derwriters. The facts of a particular case 
 may justify reasonings of this descrijition, but 
 it must always be renicmbcretl that there is 
 no such head of insurance law as loss by 
 sale (2). That which in its own nature is 
 not a total loss, cannot be converted into one 
 by any act of the master. The propriety of 
 the master's conduct in the sale of his ship, 
 and the liability of the insurers on their con- 
 tract, are questions perfectly distinct. 
 
 A constructive total loss occurs when, by 
 means of the perils insured against, a ship 
 has sustained such injury that a prudent and 
 discreet owner, uninsured, looking at the 
 cost of rcpaii-s and the intrinsic value to him 
 of the ship, under all the circumstances 
 attending her, when repaired, would not 
 repair her (3). 
 
 A master may be justified iu selling his 
 ship when, being without any practically 
 useful means of advising with his owners, he 
 finds her in such a condition from any cause 
 or combination of causes, as from recent 
 damage, imperfect construction, bad mate- 
 rial, old age, and decay, that she cannot 
 safely proceed on her voyage without repairs, 
 which he has not the means of obtaining, or 
 only at a cost exceeding the amount which, 
 looking at her probable value, after their 
 completion, a prudent and discreet owner 
 would think right to incur (4). 
 
 What, then, is the meaning of the rule so 
 frequently inculcated, that the master in case 
 of a misfortune to his ship, unist do his " best 
 for the benefit of all concerned r" 
 
 A ship, driven into port by sea damage, in 
 itself but trifling, is discoveretl on survey 
 to be in a state of general and perilous decay. 
 The master is satisfied of her inability to 
 complete her voyage without extensive 
 repairs, and that the cost of them must be 
 such as to create a grave doubt if an innne- 
 diate sale would not Ik; more for the interest 
 of her owners. In resolving that doubt, if 
 he means fairly and reasons rightly, his 
 knowledge that the ship is insured will not 
 inrtnence his judgment. Fraudulent state- 
 ments or suppressions in protests and surveys, 
 followed by a hasty side or by extravagant 
 repairs, may seriously affect the interests, 
 but cannot extend the legal liability of the 
 \mder writers. His duty to them is no other 
 than the duty of an honest servant of an 
 honest employer to those with whom that 
 em])loyer has contracted. Whether he pro- 
 ceeds to a sale, or gives orders for repairs, 
 he should carefully ascertain the amount of 
 damage resulting from recent perils of the 
 sea and of damage attributable to other and 
 older causes, preserving, for the satisfaction 
 of all whose interests may be affected by his 
 acts, the evidence which will enable them 
 also to distinguish the one from the other, 
 and thereby adjust their respective losses. 
 
 It is in thissenseonly that the master cau 
 be said to discharge his duty to all concerned, 
 at least, if the insurers are included amongst 
 them. See upon this subject, Weskctt on 
 Insurance, tit. Repairs ; and for the rule of 
 the master's conduct, when masters were 
 part-owners, and ships unprotected by insur- 
 ance, the Consolato, by Boucher, cap. 245, 
 ss. 754, 760. — Mr, Justice 8hee. 
 
 (a) The Glasgow, Swab. p. 151. 
 
 (2) Per Mr. Justice Bayley, iu Gardiuei- v. Salvador, ante. p. 8. 
 
 (3) Young v. Ttiring, 2 Scott, N. R. 752. Cazalet v. St. Barbe, 1 T. R. 187. Valiu, 
 Com. liv. 3, tit. 6, art. 46. The agreed value iu a valued policy has no bearing on this 
 question. Young v. Turing, Manning v. Irving, 1 C. B. Rep. 174. 
 2 C. B. 787 ; 6 C. B. 391. Benson v. Chapman, 7 Scott, N. R. 627. 
 
 (4) The Fanny and Elmira, ante, p. 6. Soames v. Siigrue, ante 
 Boucher, cap. 245, ss, 754, 760. 
 
 Irving v. Manning, 
 p. 8. Cousulat. by
 
 12 OWNERS OF SHIPS. 
 
 Part I. tion of peril she is finally rescued and brought to anchor under the 
 pilot's orders ; further expenses are the consequence ; the owner 
 declines forwarding any credit whatever when informed of that 
 occurrence ; he does not know the extent of the damage or the 
 amount of the expense^ and he has reason to hope the money may be 
 procured upon bottomry ; but it turns out that the ship is utterly 
 unseaworthy ; that the expenses of repair would exceed her value ; 
 that she is known to be unsound, and bottomry becomes impossible. 
 A sale is advised by all the authorities, and the only alternative was 
 to await an answer from the owner^ which must occupy eight weeks, 
 and such delay would have swallowed up the whole value for which 
 the ship sold, even if the creditors had not arrested the ship by 
 process at Savannah, and sold her to pay her debts. A shipowner 
 who sends out his ship not in good repair, and neglects to insure 
 her, and furnishes the master with no credit at all, must be pre- 
 pared to expect that in case of disaster much loss will eusue. 
 I am of opinion that this sale was justified by necessity, and the 
 whole transaction appears to me to have been conducted with good 
 faith; the best advice Avas procured — all rational means taken to 
 procure money on bottomry, and the sale was by public auction. I 
 shall restore the ship to the American purchaser, with demurrage and 
 costs. I think any other course must be fraught with injustice. 
 
 And in another case [a) : — On the 1st of February, 1855, the ship, 
 being under charge of a pilot on her voyage from Bombay to Canton, 
 grounded near Woosung, and her cargo was thereupon discharged. 
 On the 4th of April the ship was got afloat and brought by a steamer 
 into Shanghai. The ship struck the ground again at the entrance of 
 the dock, and received further damage. The master states in his 
 aflfidavit that whilst the ship was on the bank at Woosung, and 
 afterwards in dock, he had surveys made, and applied for advice to 
 the consignees of the charterer and to Lloyd's agents. It does not 
 appear that the owner had any agent at Shanghai, or that the master 
 was provided with any credit at that place, or anywhere in its vicinity. 
 Under such circumstances the master resorted to the best means in 
 his power to obtain advice for the regulation of his conduct. The 
 consignees of the charterer w^ere the persons to protect the interests of 
 the charterer and to enable the master to fulfil the charter if prac- 
 ticable j the duty of Lloyd's agents was to protect the interests of the 
 insurers, and that dvity necessarily includes the duty of preventing 
 the ship from beiog unnecessarily abandoned or sold, or incurring 
 expenses for which the insurers would be liable. A specification of 
 the repairs was then made out, and advertisements for tenders were 
 circulated. The master states that there were at Shanghai only two 
 persons who could do such repairs ; that their estimates were 40,000 
 and 43,000 dollars ; and that the vessel when repaired, according to 
 such estimates, would not be warranted to pass Lloyd's surveyor ; that 
 the consignees refused to advance money, and that he, the master, 
 advertised for bottomry in vain. He then states the expense and risk 
 
 («) The Mavgani Mitchell, ] Lush. 382.
 
 2. PURCHASE FEO-M MASTER. 13 
 
 of keeping the vessel on tlie beach until he could hear from his Chap. 1. 
 owner ; and it appears from another that had the ship remained in 
 dock at Shanghai, the dock dues at £30 a day would have amounted 
 to more than she was worth. He advised with Lloyd's agent and 
 witli the members of a well-known house of trade, and they all 
 advised him to sell. A sale by auction, in lots, was then advertised. 
 Richards was the highest bidder for the liull, but by the advice of 
 Captain King, who had surveyed the ship, it was bouglit in ; Captain 
 King, however, found no more could be obtained, and after a com- 
 munication was made to the agents of the charterers, Richards' offer 
 was finally accepted. The proceeds were paid to the agents of the 
 charterers, who remitted them to the owner. If this statement be 
 true I think no reasonable doubt can be entertained that the sale 
 was justified by the necessity, for the only alternative was to beach 
 the vessel and wait some eight or nine months for orders from the 
 owner ; in the interim the vessel must have been so deteriorated as to 
 be nothing worth. 
 
 And again {/j) : — The general principle sanctioned by maritime 
 law is that the master has not, as master, any authority to sell ; that 
 necessity alone will justify such a sale and render the transaction 
 valid. This necessity is to be judged of by all the circumstances; I 
 will mention some of them. 1. The state and condition of the 
 vessel. 2. The consequences of not proceeding to sell. 3. The 
 facilities of communication with the owner. 4. The resources of 
 the master or the total absence of such resources. 5. In some 
 degree, too, the power and means of the owner to avert a sale. The 
 law inclines against sales of this description, and throws the burden 
 of strict proof upon the purchaser, for it is his duty to ascertain the 
 authority under which the master acts, or the circumstances which 
 render a sale imperatively necessary ; and from this proof, save 
 where there has been a decree of a competent court, no formality can 
 release him. 
 
 It has been decided also in the Court of Admiralty that whether 
 the onus of proving the necessity of sale against the original owner 
 attaches to a second purchaser, depends upon the circumstances of 
 each ease [c] ; that a shipwright surveying the ship with a view to 
 its sale may be justified in becoming the purchaser [d) ; that the 
 owner, if dissatisfied with the sale of his ship by his master abroad, 
 must seek recovery with the utmost possible promptitude, or he may 
 be held to ratify the sale by acquiescence [e) ; and that the owner 
 receiving the proceeds of a sale of his ship by the master abroad is 
 estopped from disputing such sale, as are also parties deriving title 
 under him with knowledge of the facts (/). 
 
 This doctrine, that necessity alone can justify the sale of a ship by 
 its master, and sustain the title of a purchaser from him, is in strict 
 
 (i) The Glasgow, ante. p. 11, and see the (c) The Australia P. C. Swab. 480. 
 
 Segredo, otherwise the Eliza Cornish, 1 {d) Ibid. 
 
 Eccl. & Adni. Rep., and the Australia, {e) Ibid. 
 
 P. C. 1 Swab. 480; the Gips^, 33 L. J., (/) The 3Iargaret Mitchell, Swab. 382. 
 Ad. 195.
 
 14 0\YNEES OF SHIPS. 
 
 Part I. conformity with the laws of other maritime nations. In France, the 
 rule is, that the master cannot sell his ship without a special autho- 
 rity from his owners, unless it be so damaged as to be no longer 
 capable of navigation (a). In the United States, the decisions of our 
 courts have been maintained ; and it has been held, that in cases of 
 extreme necessity the master may sell in a foreign country, but not 
 in the country where his owner lives [b] . 
 
 What circumstances of distress or damage will constitute such a case 
 of urgent necessity as may enable a master to convey to a purchaser an 
 indefeasible title to his ship, it is more difficult to determine. A 
 learned writer has cited with approval the rule suggested by INIr. Justice 
 Richardson, when at the bar, in the case of Reidx. Darby, 10 East. 
 143 : ^'So long as the subject matter which the master is entrusted 
 to navigate continues as a ship, and capable of navigation with such 
 repairs as are to be had, he cannot sell it ; he can only sell the 
 materials when it is broken up, or become a mere wreck.''^ Cases 
 may, perhaps, occur in which this rule would be considered too strict 
 (c), but it is one to which prudent purchasers will find it their interest 
 to attend. " The master,"^ said Baron Parke, delivering the judg- 
 ment of the Court of Exchequer, in one case [d], ''has by virtue of 
 his employment, not merely those powers which are necessary for the 
 navigation of the ship, and the conduct of the adventure to a safe 
 termination, but also a power, when such termination becomes hope- 
 less, and no prospect remains of bringing the vessel home, to do the 
 best for all concerned, and therefore to dispose of her for their benefit. 
 It is a case of necessity when nothing better can be done for the 
 master^s employers.''^ 
 Effect of [In foreign countries, attempts have been made to evade the effects 
 
 sentence of of these restrictions, by procuring a sentence of condemnation and 
 
 and sa/"'**^^^^ ^^^® °^ ^ ^^^^P ^^ ^^^^^ ^^^' service from some court or judge having 
 jurisdiction in maritime affairs.] In France such condemnation is 
 required, and is deemed sufficient to protect the title of a bo?id fide 
 purchaser, even when obtained by the fraud of the master, against 
 whom the owners must seek their remedy (e). 
 
 [No such jm'isdiction (/) is known to the law of England (g). The 
 condemnations, as they are called, sometimes made abroad, upon 
 the survey and report ot captains or carpenters, have no binding force 
 in this country, but the fact upon which they profess to be founded 
 may be again litigated by the parties interested in disputing it. 
 This was successfully done at a trial before Lord Ellenborough], 
 
 (a) Pardessus, Cours de Droit Commer- (e) Pardessus, Cours de Droit Commer- 
 cial, part 3, tit. 1. cial, vol. 3, tit. " De V Acquisition des 
 
 (J) Scull V. Briddle, 2 "Wasli. Cir R. Navires." Perhaps a court in this country- 
 ISO; Story's Abbott, p. 10. See also Phil- would give effect to a decree of condemna- 
 lipps on Insur., vol. 2, p. 317; Eraerigon, tion of a foreign court of competent juris- 
 vol. 1, pp. 591 and 892; Yalin, art. 46, diction. See Eliza Cornish, 17 Jur. 738; 
 tit. 6. 1 Ecc. & Ad. 36. 
 
 (c) Barr v. Gihson, 3 M. & W. 390. (/) Lord Stowell, in the case of the 
 
 Cambridge v. Anderlon, 2 B. & C. 691. Fatini/ and Elmira, ante. p. 6, speaks of 
 
 (rf) Hunter v. Parker, 7 M. & W. 322 ; an appeal by the master to such a court 
 
 the Bonita, 30 L. J., Ad. 45 ; the Gi^sy, for authority to sell in terms of approval. 
 
 33 L. J., Ad. 195. " There is a very convenient practice, which
 
 2. PURCHASE FKOM MASTER. 15 
 
 [ill a case (A)] in which the ship Grace having: been driven on shore Chap. 1. 
 
 at Rio Bueno, in Jamaica, in a gale of -wind, -was surveyed by 
 
 four masters of ships, in pursuanee of an order of the deputy of 
 
 the naval officer, appointed by the governor of the island to inspect 
 
 ships on their arrival there, and sold, on their opinion, as a wreck, 
 
 for less than a third of her value, but afterwards got off, very little 
 
 injured, and after slight repairs, brought, with a cargo, to England. 
 
 The owners being dissatisfied with this sale, brought their action 
 to try its validity ; and it appeared by the evidence of her master, 
 and of three masters of ships who had surveyed her, that they had 
 paid very little attention to the ship itself, which was never pumped 
 before they made their report; but they swore that they thought 
 a sale the most prudent step to be taken, on account of the difficulty, 
 expense, and hazard of removing her from her situation, and the little 
 resources that her master had for such a purpose. The plaintiffs 
 contended, that the master of a ship could not dispose of her in any 
 case ; or that admitting him to have this power in a case of abso- 
 lute necessity (/"), such necessity did not exist in this instance, and 
 the wliole transaction was a gross fraud. 
 
 [The Chief Justice, Lord Ellenijokough, told the jury, that 
 although the master had no general authority to sell, he had an im- 
 plied authority, in cases of extreme necessity, to act for the benefit of 
 the concern, exercising a sound discretion, such as the owner himself 
 would exercise if he were upon the spot ; and that in extreme cases, 
 and extreme cases only, he had ])ower to sell, as in the instance of a 
 wreck which could not be got oft', and ought not to be left to perish] 
 
 obtains in the 'Courts of Vice-Aniiralty in aisement le secret de la /aire condamner 
 
 the West Indies, wliere, the fact of distress du mains i/ en a-til assez d'exemplcs pour 
 
 being proved, the transaction is not left to qu'on pvisse penser stins jtujement temeraire 
 
 the master, but a sale is ordered under the qui y a eu des nai-ircs condamni-s, qui ne 
 
 supcrintcndiince of the court itself." And mcritaicnf pas de I'c/re, mais quand iln'y a 
 
 again, in the ease of the Warrior (1), a pas de preuce dc la friponnerie, il n\i/ a 
 
 cause of possession, in which he refused to pas moifen de la punir." — Valin, Coiinn. 
 
 restore to the real owner a sliip which, after sur I'Ordonnance, liv. 2, tit. 1, art. 10. — Mr. 
 
 ineffectual attempts to obtain money for Justice Shee. 
 
 necessary repairs, was sold by the master (^^r) Sec, however, the 3 & 4Will. IjC. 55, 
 
 under the order of the Vice-Admiralty s. 8, now repealed ; Hunter \. Prinseps, 10 
 
 Court of the Mauritius, the same learned East. 378; Hunter v. Parker, Ti\.&.\\.Zi2. 
 judge observed, " \\'hat is the master to (A) Hat/man and others v. Moulton and 
 
 do ? Common sense, as well as the law, others, Sitt. at Guildhall, Nov. 1, 1803. 
 
 point out that he should, in the first place, There is a report of this case in 5 Esp. 
 
 apply to the agent of tlie owner, which it N. P. C. j). 65. Pidgioay v. Roberts, 4 
 
 appears he did. if the agent cannot or will Hare, 103; the Bonita, 30 L. J. Ad. 145. 
 not assist, and if himselt and his owners are (/) As to this (the degree of necessity 
 
 without any other friends who are ready to which will justify a sale of the ship by the 
 
 come forward and furnish him with the master), see the autliorities and reasoning 
 
 necessary suppHes, what can be done better collected in 2 Phillipps on Insurance, 307, 
 
 than make application to the Court of et seq., and the note to Story's edition of 
 
 Admii-alty ?" But the convenience of this this work, p. 10. As to necessity being an 
 
 practice may well be doubted from Valin's excuse for the violation of a positive law, 
 
 experience of its effect : " Un capitaine on see Lord Stowell in the Generous, 2 Dods. 
 
 maitre lie s' arise pas de vendre son navire, 328. 
 mais quand il veut s'en di'faire, il trouve 
 
 (1) Dodson's Ad. Rep. 288.
 
 16 OWNERS OF SHIPS. 
 
 Part I. [absolutely. Aud he desired tlie jury to consider whether in this 
 case there was such a necessity as would have induced the owner him- 
 self to sell if he had been present ; and, if they thought there was 
 such a necessity, then, whether the sale in this instance was 
 fraudulent. The jury found a verdict for the plaintiffs. 
 
 In the course of the trial no regard was paid to the authority of 
 the deputy naval ofl&cer, whose situation certainly gives him no 
 manner of jurisdiction on such a subject. In commenting upon the 
 evidence, the Chief Justice adverted particularly to the circumstance 
 of one of the surveyors having bid at the sale, and another become a 
 purchaser before the ship left the island ; and observed, that it might 
 be a useful lesson to teach such persons, that by accepting the office 
 of surveyor, they elected, not to become purchasers, or to derive any 
 benefit from the sale. 
 
 And at a subsequent trial of an action (a), brought to recover the 
 value of a ship, which had been ia like manner condemned and sold 
 at Tobago, as incapable of repair, his lordship said, that he considered 
 a proceeding of this sort, not as the sentence of a court pronounced 
 for the captors of a captured vessel, but rather as the inquisition of 
 a sheriff, for the purpose of information to those who, under certain 
 circumstances, have the power of selling the ship. Such an inquisition 
 is not conclusive upon the party whose property is in question. 
 
 In the case of the ship Grace, the sale was considered to be fraudu- 
 lent ; but in those of the ship Glamorgan, and the &\n^Lady Banks {b), 
 the sale was thought to be fair and well intended ; and the former 
 was made under an order of the Court of Vice-Admiralty of Antigua, 
 founded on the proceedings usual on such occasions — viz., a petition 
 of the master to the court for a survey, a commission of a survey, 
 report of surveyors, decree of the judge adopting the report, petition 
 of the master for a sale, and a commission of sale directed to the 
 marshal of the court. Yet in this case also, the Court of King's 
 Bench decided, that the Vice- Admiralty Courts abroad have no autho- 
 rity to decree, upon the mere petition of the master, the sale of a ship 
 reported upon survey to be unseaworthy, and not repairable, so as to 
 carry its cargo to the place of destination without an expense 
 exceeding the value of the ship when repaired (c) .] 
 
 3. Of Title by Capture and Condemnation {d). 
 
 [Another mode of acquiring property in a ship is by capture from 
 an enemy in time of war, legalized and sanctioned by a sentence of] 
 
 — ^ — — — .^ 
 
 (a) Andrews v. Glover. Sitt. after Trin. See the Ehele, 5 Rob. 173, in which the 
 
 T., 46 Geo. 3, at Guildhall. power of the crown to direct the release of 
 
 (i) Fifth ed. of this work, p. 6; 1 Blng. property secured as prize before adjudica- 
 
 243. tion, and against the will of the captors, 
 
 (c) Held V. Darhj, 10 East. 143. was affirmed. See also the Thetis, 1 Hagg. 
 
 (rf) " Prize," said Ijord Stowell " is alto- 231. 1 Blackstone, by Christian, 259, note, 
 
 gether a creature of the crown. No man Vattel's Law of Nations, b. 3, c. 15. See 
 
 has or can have any interest in it but what 27 & 28 Vict. c. 25, an Act for regulating 
 
 he takes as the mere gift of the cro^\^^." naval prize of war. This Act recites
 
 3. TITIiE BY CAPTURE. 17 
 
 [condemnation in a court of the capturing povrcr^ constituted accord- Chap. 1. 
 ing to the law of nations (e) .] 
 
 As to restoring prizes brought into British ports contrary to the 
 Foreign Enlistment Act, &c., 1870, see sect. 1 i of that Act. 
 
 [There appears to be no settled and uniform rule established in 
 practice among nations as to the precise period at which property is 
 devested by capture. By some writers, and in some nations, this has 
 been heldto take place after a possession of twenty-four hours; by 
 others, not until the prize has been carried iiifra j^rtcsidia (/) — an 
 expression of very doubtful meaning as applied to maritime warfare. 
 Lord Stowell has said, that, in his apprehension, " by the general 
 practice of the law of nations, a sentence of condemnation is at pre- 
 sent deemed generally necessary, and that a neutral purchaser in 
 Europe during wars, looks to the legal sentence of condemnation as 
 one of the title-deeds of a ship, if he buys a prize vessel" {g). Such 
 a sentence was thought necessary in this country to devest the title 
 of the original owner, and give a valid title to the purchaser under 
 captors more than a century ago ; and a ship taken from an English- 
 man by a French squadron in the year 1G91, and sent into Bergen in 
 Norway, and tiierc sold, coming afterwards into this country, was 
 claimed by the original owner, and decreed to be restored to liim by 
 a sentence of the Court of Admiralty, alfirnicd afterwards upon appeal 
 to the delegates (//). And \\\)o\\ the ground, that a legal sentence of 
 condemnation cannot, according to the law of nations, be pronounced 
 by a consul or minister of the belligerent power, in the country of a 
 neutral power to which the prize may have been taken ships have 
 been restored, by the judgment of the Court of Admiralty, to their 
 original owners, as well upon recapture from the purchaser (i), as 
 upon arrest in a port of this country {k). In one case, the ship, while 
 in the hands of a neutral purchaser, had been taken by the French 
 and carried into a Spanish port, and there condemned by the French 
 consul as prize, but that condemnation had been reversed on appeal to 
 the Superior Prize Court at Paris, and the ship restored to the pur- 
 chaser. These facts, however, were held not to alter the case, or give 
 validity to the title of the purchaser.] 
 
 AVhen this practice of condemnation in a neutral port, by the 
 consul of a belligerent state, was first challenged in the Court of 
 
 "that it is expedient to enact permanently (/) March 110. See Vattel, b. .3, c. 13. 
 
 with amendments such provisions concerning {g) 1 Kob. A. R. 139; 17 & 18 Vict, 
 
 naval prize and matters connected therewith c. 104, s. 40. When by condemnation a 
 
 as have heretofore been usually passed at the complete title has vested in the captors, the 
 
 beginning of a war" ; and enacts that the property in the prize relates back to the 
 
 High Court of Admiralty and other courts time of the capture, and an assignment 
 
 shall be prize courts, and regulates the mo<.le by the captors in the mean time is 
 
 of procedure in prize causes, &c. valid; Stevens v. Bagwell, 15 Vcs. 139; 
 
 (e) Molloy, b. 1, cc. 2 and 3. Assevieclo Morrougk v. Co7ni/n.<t, 1 Wils. 211 ; Alex- 
 
 V. Cambridge, 10 Mod. 77. Goss v. ander v. JDitf^e of Wellington, 2 Russell & 
 
 Withers, 2 Burr. 690. As to wlien " the M. 35. 
 
 sentence of a foreign Court of Admiralty of (A) The ship Constant Mary, 3 Rob. A. R. 
 
 competent -jurisdiction pronounced in rem 97, note. Thermolin v. Sands, Carth. 423. 
 
 is conclusive against all the world,'' see {i) The Flad-Oyen, 1 Rob. A. R. 135. 
 
 notes to Duchess of Kingston's Case, 2 (X) The Kierlighett, 3 Rob. A. R. ^Q- 
 
 Smith's Leading Cases, ante, 14. Aud the Prosperous, Dec. 1800.
 
 18 OWJsERS OF SHIPS. 
 
 Part I. 
 
 Admiralty of England, it was treated by Lord Stoavell as a pretension 
 altogether "without authority. " I must deem/' he said, " the act 
 of this French consul a licentious attempt to exercise the rights of 
 war within the bosom of a neutral country/' Lord Kenyon, in the 
 Court of King's Bench, a few months after, emphatically approved 
 of this decision, and said, that " the case had been determined on 
 grounds which would recommend it to all who filled judicial 
 situations" («) . 
 
 The principle upon which these decisions were founded is, that a 
 sentence of condemnation as prize of war is a judgment in rem ; the 
 result of legal proceedings in a legitimate court, armed with com- 
 petent authority upon the subject-matter, and over the parties con- 
 cerned ; a court which has the means of pursuing the proper inquiry, 
 and enforcing its decision by reason of its possession of the res ipsa, 
 the corpus, which is the subject-matter of it. 
 Condemnation According to this principle, a ship carried into a neutral port 
 in a neutral ought uot, while remaining there, to be condemned in the countnj of 
 port. the captors ; and in the cases of the Flad-Oijen and the Herst elder [b), 
 
 Lord Stowell was of opinion that such a practice was not authorized 
 by the law of nations. In the last cited case, having learnt that a 
 Dutch ship, condemned by him, and which was described as lying at 
 Plymouth, had been taken on capture to a port in Norway, and lay 
 there at the time of adjudication, he declared that " the court would 
 not condemn a vessel lying in a neutral port, and directed the 
 registrar to amend the decree. '^ Upon principle," said the same 
 learned judge, in the subsequent case of the Heinrich and Maria (c), 
 which was that of a British ship carried into NorAvay by a Dutch 
 privateer, and condemned by a court at the Hague, " it is not to be 
 asserted that a ship brought into a neutral port is with effect pro- 
 ceeded against in the belligerent country. The res ipsa, the corpus, 
 is not within the possession of the courts, and possession in such 
 cases founds the jurisdiction." But having been satisfied that the 
 High Court of Admiralty of England had condemned, as prize, ships 
 lying at Leghorn and Lisbon, when the sovereigns of those ports 
 were not engaged in a common war against the enemy of this 
 country, and had also issued commissions to other neutral ports for 
 the examination of prisoners of war carried into them, he added, 
 " I am of opinion that this court is bound against the true principle, 
 by the practice which it has not only admitted but applied. The 
 observation of Bynkershoek, 'Injure belli quod quis sibi sumit hostibus 
 tribueJidum esf — a rule true in all instances — is not more true in any 
 instance than in one in which the rights and interests of other coun- 
 tries, being neutral, are so directly concerned. How far the superior 
 court may consider that question as concluded by the practice, even 
 an inveterate practice of this court, is more than I can say ; it may 
 deem it to be its duty to recall the practice of this court to the proper 
 
 (a) SavelocTc v. Sochoood, 8 Term. Rep. (b) 1 Rob. A. R. 113 j The Folka, Spinks 
 
 268. Donaldson v. Thompson, 1 Camp. Prize Rep. 57. 
 429. (c) 4 Rob. A. R. 34.
 
 3. TITLE BY CAPTL-EE. 19 
 
 purity of tlic principle; but sitting here and observing, as I am chap. 1. 
 
 judicially bound to do, the course of judicial administration which has 
 
 prevailed, I do not feel myself authorized to uphold the sentences 
 which have passed in this court over prizes carried into foreign 
 ports, and disallow, at the same time, the validity of such as the 
 enemy has pronounced, imder circumstances so nearly similar as not 
 to afford ground of a distinction between them, Avhich appears to my 
 judgment sufficiently solid.'-' To this decision Lord Stowell adhered 
 in the eases of the Comet {d). States in alliance Avith the captors and 
 at war with the country to which a captured ship belongs, are, it 
 seems, considered as forming one community with the captors; and 
 a prize carried into such a state may be legally condemned there by a 
 prize court of the nation of the captors [e). 
 
 The case of the Heinrich and Maria was affirmed by the lords of 
 appeal; and the judgment pronounced by Sir AVilliam Guaxt (/) 
 proceeds upon the ground, that the case was decided in accordance 
 with the practice of Great Britain {g). 
 
 The doctrine thus sanctioned by the practice of France, Spain, and 
 Holland, and reluctantly admitted by the High Court of Admiralty 
 of England, has, after much diversity of opinion, been adopted by the 
 courts of the United States {h). 
 
 The Admiralty Court of Prizes has jurisdiction not only over the What Court of 
 question of prize, but over all its consequences : it may restore the Prizes juris- 
 ship and condemn the cargo, and give or refuse freight to the master "'''■^'°" '*^'^''' 
 of the ship captured according to the nature of the cargo and the 
 circumstances of the case (i). 
 
 [If a neutral state seize and sell a vessel, there being no sentence 
 of condemnation, the property in the vessel is not changed {k) . 
 
 Capture hy pirates, \{\\o are merely robbers at sea (/), does not Capture by 
 devest the property of the owner ; and in a very early period of our pistes. 
 history, a law was made for the restitution of property so taken, if 
 found within the realm, belonging as well to strangers as Englishmen. 
 But capture by an enemy, in the exercise of war between two nations, 
 does, according to the law of nations, wholly devest the property of] 
 
 {d) 5 Rob. A. R. 285. 13 How Rep. 498; Story, note to American 
 
 \e) The Christopher 2 Rob. 209. The edition, p. 16. 
 
 Betsey, 2 Rob. 210. The Victoria, Ed- {h) " Placuit gentibus," said Lord 
 
 wards, 97. Oddy v. Bovill, 2 East, 472. Stowell, " is an' expression of Grotius, in 
 
 (/) 6 Rob. A. R. 138. my opinion perfectly correct, as intimating 
 
 \g) The doctrine of the British courts that there is a use and practice of nations 
 
 proceeds, as is at once seen, not so much to which we are now expected to conform." 
 
 upon its supposed correctness in point The Heinrich and Maria, supra, 
 
 of principle, as upon the general usage of (i) Per Bclleh, J. in Smart v. Wolfe, B 
 
 nations, and particularly of Great Britain. T. R. 323 ; and see post, Pt. 6, ch. 1 ; 
 
 Thequestion has been argued upon principle and Hughes v. Cornelius, 2 Show. 232. 
 
 in the Supreme Court of the United States ; Tompson v. Smith, Sid. 320. Le Caux 
 
 and after elaborate discussion, it has been v. Eden, 2 Dougl. 594. Mitchell v. Itodneg. 
 
 adjudged that a condemnation of prize 2 Br. P. C. 423. Lindo v. Rodney, 2 Dougl. 
 
 property, while lying in a neutral port or 613. 
 
 in the port of an ally, is valid. Hudson v. {k) Wilson v. Forster, 6 Taunt. 25. 
 
 Guestier, 4 Cranch. Rep. 293; S. C. 6 (/) 27 Ed. 3, s. 2, c. 13; Year Book, 2 
 
 Cranch. 281. The Arabella and Madeira, Rich. 3; 2 Jenlc. Cent. p. 165; and see as 
 
 2 Gall. Rep. 368; Jecker v. Montgomery, to rebels and insurgents against the govcrn- 
 
 c 2
 
 20 OWNERS OF SHIPS — 
 
 Part I. [the owner^ and transfer it to the captor or the sovereign of his 
 
 state at some period («). The African states^ having now acquired 
 
 the character of established governments, and having regular treaties 
 Avith this country, are not at present considered as pirates ; and, 
 therefore, in the case of a British ship captured by the Algerines, and 
 sold under the authority of the Dey of Algiers, before the Spanish 
 Consul, to a merchant of Minorca, who transferred it to a British 
 merchant under the sanction of the judge of the Vice-Admiralty 
 Court at Minorca, the Court of Admiralty here refused to award 
 restitution to the original owner {b).'\ 
 
 Eestitution on The subject of restitution on recapture will be mentioned in the 
 
 recapture. chapter on salvage. 
 
 Ransoaiing By 27 & 28 Vict. c. 25, s. 45, " Her Majesty in Council may from 
 
 prizes. time to time in relation to any war make such orders as may seem 
 
 expedient, according to c-ircumstances, for prohibiting or allowing, 
 wholly or in certain cases, or subject to any conditions or regula- 
 tions or otherwise as may from time to time seem meet, the ransom- 
 ing or the entering into any contract or agreement for the ransoming 
 of any ship or goods belonging to any of Her Majesty^s subjects, and 
 taken as prize by any of Her Majesty ^s enemies. 
 
 ^' Any contract or agreement entered into, and any bill, bond, or 
 other security given for ransom of any ship or goods, shall be under 
 the exclusive jurisdiction of the High Court of Admiralty as a prize 
 court (subject to appeal to the Judicial Committee of the Privy 
 Council), and if entered into or given in contravention of any such 
 Order in Council shall be deemed to have been entered into or given 
 for an illegal consideration (c) . 
 
 " If any person ransoms or enters into any contract or agreement 
 for ransoming any ship or goods in contravention of any such Order 
 in Council, he shall for every such offence be liable to be proceeded 
 against in the High Court of Admiralty at the suit of Her Majesty 
 in Her Office of Admiralty, and on conviction to be fined, in the 
 discretion of the Court, any sum not exceeding five hundred pounds." 
 
 4. Of the Liability of Owners of Ships for Repairs or Necessaries. 
 
 It seems proper in this place to take notice of a question on which 
 formerly much misconception existed — How far, and under what cir- 
 cumstances, the legal title and ownership of a ship attach to them- 
 selves the responsibility of paying for repairs or necessaries ordered 
 by other persons ? A notion at one time prevailed, and it was coun- 
 tenanced by high authority {d), that the registered owners were in 
 all cases liable for repairs done, or necessaries supplied to a ship, and 
 
 ment of their country committing piratical (b) The Selena, 4 Rob. A. E. 3. 
 
 acts. The Magellan i>irafe!>,l'E.& A.]).83. (c) See post , iia.Yt IV., c. 9, 10. 
 
 (a) Hale's Treatise, part II., ch.' 28 ; in (d) See Westerdell v. Dale, 7 T. R. 306. 
 
 Hargrave's Law Tracts, p. 246. Goss v. Eeid v. Coe, 1 Cowp. 636, per Lord Mans- 
 
 Withers, 2 Burr. 683 ; 1 Rob. A. R. 59 ; FIELD. Holcroft v. Hoggins, 2 C. B. 488. 
 Marsh, on Insurance, 5th eel. by Shee, p. 394.
 
 4. LIABILITY OF, FOR EFPAIES OR NECESSARIES. 21 
 
 actions were continually brought against persons whose title appeared Chap. 1. 
 complete upon the register, when, in fact, the credit had been given 
 to others. But this notion is incorrect. 
 
 AVhere the purchaser of a ship, in the interval elapsing between 
 the inception and completion of his conveyance, ordered the master 
 to take her to a shipwright to be repaired, which was done accord- 
 ingly, the seller, although deemed to be the legal owner at the time, 
 was held not to be answerable to the shipwright (e). In the case of 
 Jennings v. Griffiths (/), the defendant was sued for repairs done to a 
 ship, on the ground that he Mas the registered owner. Lord Ten- 
 TERDEN said, ''The true question in matters of this description is, 
 'Upon whose credit was tiie work done?' That question would, in 
 most cases, be decided by the fact of legal ownership— the repairs 
 being generally done for the legal owners. But it may so happen 
 that the name of a person may be retained on the registry after he 
 has ceased to be beneficially interested in the ship, or to interfere 
 with its concerns. In the case before you, it docs not appear that 
 the defendant had the slightest knowledge of tlic work being done, 
 nor that the plaintiff had any reason to suppose him connected with 
 the vessel. The repairs were ordered by the direction of a captain 
 appointed by a stranger to the defendant, anc that too whilst he was 
 residing in a distant part of the country. The question for you to 
 consider is, ' Were or were not these repairs done upon the credit of 
 the defendant?''' 
 
 It is now clearly established that although the fact of a person's 
 name appearing upon the register as the owner of a ship is, if un- 
 explained or uncontradicted, some evidence of his liability for work 
 done or orders given by the master within the scope of a master's 
 general authority, the question in such cases is one of principal and 
 agent, and he only, whether owner, or charterer, or intended pur- 
 chaser, by the authority of whom, as his agent, the master gave the 
 orders, is liable upon them [y) . 
 
 5. Of the Liability of Charterers and Owners pro tempore. 
 
 Upon the same principle have been determined the cases in which 
 the question has arisen, whether the charterers or hirers of a vessel 
 for a specified time, or adventure, or the absolute owners, are liable 
 for repairs done, or stores supplied to her. Here again the question 
 has been. On whose credit was the work done, or the goods supphed? 
 by whose servant was the order for them given? In Frazer v. 
 
 (e) ro(!«^ V. 5;-a»rfo-,8East,10. Baker 25 L. J. Q. B. 39. Myers v. Willh, 18 
 
 V. Buckle. 7 Moore, 349. Mclver v. Eiimhle, C. B. 886. Mackenzie v. Pooley, 11 Excli. 
 
 16 East, 169. 638 ; 25 L. .1. Exch. 124. Brodie v. 
 
 (/) 1 Ryan and Moocly, 42. See Earring. Hoivard, 17 C. B. 109. Smith v. Mc Quire, 
 
 ton V. Fry, 1 C. & P. 289; Curling v. 3 H. & N. 554; 27 L. J. Exch. 455. 
 
 Soherlson, 8 Scott's N. E. 17; Front v. Hackwood v. Lyall, 17 C. B. 124; 25 
 
 Oliver, 22 L. J. Q. B. 353; Trewhella v. L. J. C. P. 39. Alexander v. Vowie, 
 
 Rowe, 11 East, 435. 1 H. & N. 152; 25 L. J. Exch. 281. 
 
 {g) Mitchenson v. Oliver, 5 £. & B. 419;
 
 22 
 
 OWNERS OF SlilFS. 
 
 Part I. Marsh (a), tlie defeudaut. being tlie registered owner of a ship, let 
 her by charter-party, for a given number of voyages, at a certain rent, 
 to "Walker, who was then the captain of her, and who afterwards 
 ordered stores for her use, which were supplied by the plaintiff, for 
 the value of which the action was brought. Lord Ellexborough said, 
 '' The question is, whether the captain, in this instance, who ordered 
 the stores, was or was not the servant of the defendant, who is sued 
 as owner ? and as they do not stand in the relation of owner and 
 master to each other, the captain was not the defendant's servant, 
 and, therefore, the latter is not liable for his act/^ 
 
 In the case oi Reeve v. Davis and others (i), which was assumpsit 
 for goods sold, work, &c., the defendants were the registered owners 
 of a steam-vessel, for which goods were supplied and work done, 
 chiefly upon orders given by one Thompson, who was the captain ; 
 some also Avcre given by the ship's husband and the engineers. The 
 vessel was let to Thompson by a charty-party, under seal, executed 
 by himself and the defendant Davis, acting for himself and the 
 other owners. By this charty-party, the defendant hired and let to 
 freight, and Thompson engaged and took to freight, the vessel for 
 twelve months, to be employed in carrying passengers and goods 
 between London and Topsham, in Devonshire. The defendants en- 
 gaged to keep the engine in repair^ Thompson himself to do all other 
 repairs ; to pay all wages of persons employed on board during the 
 term, all charges attending the working and sailing of tlie vessel, 
 piloting and port-charges ; to indemnify the owners against all debts, 
 costs, damages, expenses, &c., incurred by the vessel, or any person 
 employed on board, or by Thompson, for and in respect of the said 
 charter-party, and employment of the said vessel; to pay the hire of 
 the vessel monthly ; to insure in tlic name of the owners ; to keep all 
 the vessel in repair except the engine; and to deliver her up in good 
 repair at the cud of the term. The owners were to appoint the 
 engineers, but tliey were to be paid by Thompson. 
 
 The plaintiff was unacquainted with the above contract ; and it 
 was contended that the defendants were liable, as owners of the vessel. 
 Lord Denman said, "The question is. Who were the contracting 
 parties. The mere circumstance of ownership may be sufficient to 
 create a liability, where the vessel has been left under the control of 
 a party who has given orders, if no intervening ownership has been 
 created ; but if a ship is let out to hire, I do not see how the owners 
 are liable for work done upon it by order of the party hiring, more 
 than the landlord who lets a house.'^ 
 
 6. Of the Rights and Liabilities of Mortgagees. 
 
 As to the form and registry of mortgages, and as to their prl- 
 ority^ seepost, 49. It may be shown that a transfer of a ship absolute 
 
 («) 13 East, 238. Steel v. Lester; 47 (b) 1 Adol. & ElUsj 312. 
 L. J. C. P. 43.
 
 6. KIGIIT.S AND LIABILITIES OF MOETGAGEES. 23 
 
 ill point of form is in fact a security only (c). A mortgagee of Chap. 1. 
 a ship, like the mortgagee of any other property, acquires an owner- 
 ship in the ship viz., such ownership as the mortgagor has to 
 give (</). 
 
 As to the mortgagee of a ship not being deemed tlie owner of it. Mortgagee 
 except for cerLain purposes, see jwst, 50. The provision as to this was ^^'^^ deemed 
 intended for the protection of the mortgagee. Whether the mort- 
 gagee of a ship was to he deemed in law the owner of it — entitled 
 to the benefits, and liable to the burthens which belonged to that 
 character — before he took possession, was formerly an important 
 question, on which persons of eminent talents differed in opinion (c). 
 
 A shipwright who has done necessary repairs to a ship on the 
 order of a mortgagor in possession, has been lield entitled to a lieu 
 for them on the ship as against the mortgagee (/). 
 
 It has been held that a creditor of a registered OAvner cannot take 
 in execution and sell a mortgaged ship {(/). 
 
 A first registered mortgagee is entitled to take possession of the Uny take 
 
 ship (h). possossion of 
 
 The mortgagor is entitled to the frciglit until the mortgagee takes ''^'' 
 possession or docs that Avhich is equivalent to it (i). A mortgagee ^^ £j!"j,^,"j.' 
 taking possession of a ship before the voyage is ended, and finding 
 goods on board which have been carried on the terms that freight 
 is to be paid, is entitled to that freight {k). If the mortgagor be 
 only a part-owner, the claim of the mortgagee for freight will be 
 limited to the net freight, after deducting outfit and disbursements (/). 
 As, however, it is provided that the mortgagee shall not be deemed 
 the owner, nor the mortgagor to have ceased to be the owner, except 
 so far as may be necessary to make the ship available for the pay- 
 ment of the debt secured, where a mortgagor, who was also the 
 
 (c) Ward V. Bed; 32 L. J.. C. P. 113 ; (/) WilUaMS v. Alhiip, 10 C. B. (N. S.) 
 
 13 C. B. (n. s.) 668 ; The Cathcart, L. R. 1, 417 ; 30 L. .T. C. P. 353 ; Tlie Two Ellens, 
 
 Ad. 311. h. P. 3 A. ct E. 358 ; L. P. 4 P. C. 161. 
 
 {d) KeitJi V. Bin-rows, 45 L. J., C. P. (ff) Kitchen v. Irvine, 28 L. J. Q. B. 46. 
 876. As to the riclits of a second iiiort- (A) Keith v. Burrows, 45 L. J. C. P. 876, 
 
 gagec, see S. C, j)er cur. per cur. 
 
 (c) C'hinnertf v. Blackburn, 1 Hen. Black. (t) Gardner v. Cazenove, 26 L. J., Ex. 
 
 117. See Kerswell v. Bishop, 2 Cromp. & 17 ; 1 H. & X. 423 ; Eusden v. Bojie, L. P. 
 
 Jerv. 529. Lord Mansfield said, " Till the 3, Ex. 209 ; 37 L. J. Ex. 137 ; Willis v. 
 
 mortgagee takes possession, the mortgagor Palmer, 29 L. J. C. P. 194, where, upon 
 
 is owner to all tlie world, and he is to reap the terms of au assignment, it was held 
 
 the profits." And Mr. Justice Btjller saicl, that an immediate right to passage money 
 
 " If the mortgagor be considered as agent, passed. 
 
 he must be so throughout, and then the (k) Keith v. Burrows, 46 L. J. C. P. 452, 
 
 mortgagee would be answerable for every 801 ; Tanner v. Phillips, 42 L. J. Ch. 125 ; 
 
 loss, damage," &c. The learned judges by Kerswell v. Bishop, 4: Bin f^. 45. He is so 
 
 whom this case was decided were of opinion entitled in priority to mortgagees of the 
 
 that a mortgagee who had not taken pos- freight, Liverpool Marine Credit Company, 
 
 session would not be liable for such repairs v. Wilson, 41 L. J., Ch. 798; L. R. 7 Ch. 
 
 or other expenses as are not a charge upon 507; Brown v. Tanner, 37 L. J. Ch. 923; 
 
 the ship itself in specie. Jackson w Vernon, as to tacking incumbrances, see S. C. ; 
 
 1 H. m. 114 ; Twenttpnan v. Hart, 1 Stark, Wilson v. Wilson, 41 L. J. Ch.'423. 
 366 ; Bri(j(js v. Wilkinson, 7 B. & Cres. 30 j {I) Alexander v. Simms, 5 De G. M. & G. 
 
 Busden v. Pope, L. R. 3 Ex. 272, per 57 ; and see Green v. Briggs, 6 Hare, 395, 
 Maktix, B.
 
 24 
 
 OWNEES OP SHIPS. 
 
 Part I. 
 
 Authority of 
 mortgagor. 
 
 Mortgagee's 
 power of sale. 
 
 Accounts 
 between 
 and master. 
 
 Jurisdiction 
 of Court of 
 Admiralty. 
 
 owner of a ship^s cargo,, had become bankrupt^ and the mortgagee 
 did not take possession until her voyage -was completed, it was held 
 that he had no right to detain the goods for the freight, as both 
 freight and goods had vested in the assignees (a) . 
 
 A mortgagee, so long as he does not interfere or claim the pos- 
 session, must be taken to have allowed the mortgagor to enter into 
 all engagements for employment of the ship, usually entered into 
 by a person who has the apparent control and ownership of a 
 ship {b) . A mortgagor in possession of a ship having entered into 
 a beneficial charter-party, the mortgagees were restrained at the 
 suit of the charterers from dealing with the ship in derogation of the 
 charter-party (c). 
 
 The legal title of a mortgagee of a ship who, for the purpose of 
 facilitating a sale by the mortgagor, conceals his mortgage, cannot 
 prevail in equity against a purchaser for valuable consideration with- 
 out notice (d) . 
 
 As to a mortgagee's power of sale, see post, 50. When the mortgagee 
 enters into the possession of the mortgaged property with a view to 
 the sale of it, he is bound to act wdth the same care and prudence, 
 and use every effort which a prudent proprietor would use to have 
 the sale conducted under circumstances of the greatest advantage, 
 and if he employs it, as it seems he may, for the purpose of an 
 adventure, which turns out a losing affair, he, and not the mortgagor, 
 must bear the result of the loss (e) . 
 
 In his accounts against a mortgagee, the master is entitled to 
 security for the amoimt for which he is personally liable in respect of 
 necessaries (/). 
 
 It was formerly considered that the Court of Admiralty had no 
 jurisdiction to take cognizance of the rights of mortgagees of ships 
 arrested under its process, or sold by its autliority ; but the better 
 opinion seems to be, that though a mortgagee could not institute a 
 suit in that court, he might appear in a suit to protect his interests {(/) . 
 By the 3 & 4 Vict. c. 65, s. 3, it is enacted, '' That Avhen any ship 
 or vessel shall be under arrest by process issuing from the said High 
 Court of Admiralty, or the proceeds of any ship or vessel, having 
 been so arrested, shall have been brought into and be in the registry 
 of the said court, in either such case the said court shall have full 
 
 (a) Branher v. Molyneux, 5 Jur. 773. 
 
 (6) Johnston v. Royal Mail Steam Packet 
 Company, 37 L. J. Ch. 33 ; L. R. 3, C. P. 
 38 ; and see Broion v. North, 8 Ex. 1, where 
 it was held that the mortgagee was only 
 entitled to the freight (less than the current 
 freight) specified in bills of lading signed 
 by authority of the mortgagor, though 
 signed after the mortgage, which was con- 
 sidered not to inyalidate an arrangement 
 made pursuant to preyious authority from 
 the mortgagor and before the mortgage 
 could be known. Keith y. Burrows, 46 
 L. J. Q. B. 801; Rusden \. Pope, L. K. 3, 
 E.X. 269. 
 
 (c) Collins V. Lamport, 34 L. J. Cli. 196; 
 see Cato \. Irviny, 5 De CI. & S. 210. 
 
 (d) Sooper y. Gumm, 36 L. J. Ch. 605. 
 
 (e) Marriott y. Anchor Reversionary 
 Company, 30 L. J. (X. S.) Ch. 122; 2 Giff. 
 457; 3 De G. F. & J. 177. De Mattos y. 
 Gibson, ib. 145. European, tj'c. Mail Com- 
 
 panii y. Roi/al Mail Steam Packet Compani/, 
 4 Kay & J. 676. 
 
 (/) The Limerick, 45 L. J. Ad. 97. 
 
 Ig) Neptune, 3 Haeg. 132. The Percy^ 
 3 Hagg. 402. T\ie^ Doiothorpe, 2 Wm. 
 Rob. 80.
 
 7. LIABrLlTlES OF CHARTERERS, &C. 2^ 
 
 jurisdiction to take cognizance of all claims and causes of action of Chap. 1. 
 any person, in respect of any mortgage of such ship or vessel, and to 
 deci(le any suit instituted by any such person in respect of any such 
 claims or causes of action respectively^'' {h) . 
 
 This jurisdiction has been extended to any claim in respect of any 
 duly registered mortgage, ^vlletller the ship or her proceeds be under 
 arrest of the court or not (?) . 
 
 7. The Liability of Owners and Charterers of Ships further 
 
 considered. 
 
 [It often happens that the chaz'tcrcr of a ship causes it to be laden 
 either "wholly or in part with goods belonging to other persons; in 
 such cases, it seems that tlie charterer is to be considered as the 
 owner of the ship with respect to those persons. But as different 
 decisions have taken place, it is proper to notice them here. 
 
 In the case of Parish v, Crawford {k), an action was brought 
 against the defendant, as owner of a ship, upon a promise alleged to 
 have been made by him to the plaintiff to convey in his ship a quan- 
 tity of moidores from London to Barbadoes, which had not been 
 delivered there. The facts of the case Mcre, that the defendant, 
 the owner, had chartered the ship to one Fletcher for the voyage in 
 question for a certain sum, and Fletcher was to have the freight of 
 goods, but the freight of passengers was reserved to the defendant ; 
 and the defendant appointed the master, and covenanted with 
 Fletcher for the condition of the ship and behaviour of the master. 
 Fletcher took on board the moidores and other goods of the plaintiff 
 and other persons, and received the freight for them. For the 
 defendant it was objected, that although the ship was his property, 
 yet he was not owner in such a manner as to be liable to this action, 
 but that Fletcher was for this purpose the owner. Chief Justice Lee, 
 however, before whom the cause was tried, was of opinion that the 
 action might be maintained ; and the plaintiff recovered damages to 
 the value of the ship and freight (/). ''The true consideration," 
 said the Chief Justice, " is, AVhethcr by anything done by Crawford, 
 who is confessedly the owner of the vessel, in chartering it to Fletcher, 
 he has discharged himself as owner ? Crawford considers himself as 
 the governor of the ship, and so covenants for the government of it 
 during the voyage, and the ship was navigated by his master. Upon 
 what foundation, then, is an owner chargeable but upon these two 
 considerations— /r"?'*/, the benefit arising from the ship, which is the 
 equitable motive ; secondly, the having the direction of the persons 
 who navigate it ? And it is upon these tAvo things taken together] 
 
 (/t) The Boti-thorpe ; ami the Prince (^■) Shortly reported in 2 8tra. 1251. The 
 
 Uegent, decided by Lord Stoweli., in 1822, account of the ease here givevi is taken from 
 
 cited in the former case. See the Fortitude, a manuscriirt note mucli fuller than the 
 
 2 Wni. Rob. 217. Hec Place v. Potts, 8 report. See part IV., clis. 2, 1. 
 
 E.\ch. 701. {I) 12 Geo. 2, c. 1.5. A statute which 
 
 (<) 21 Vict. c. 10, s. 11. limited the responsibility of the owners.
 
 26 
 
 OWNERS OP SHIPS. 
 
 Paxt I. [that the implied contract arises. Though Cra-wford has not that 
 freight which the merchants pay for their goods, yet as he has the 
 benefit of the freiglit in general^ he has that equitable motive which 
 makes him liable. "With regard to Fletcher^ what Crawford had done 
 is only giving him a power to put goods on board ; and it seems to 
 me, the makers o£ the Act of Parliament could not have any notion 
 of such an owner of the ship^ for it speaks generally of owners of 
 ships ; but this Fletcher is not to he considered as owner of the ship 
 in any light, but only as having a power to make use of it in this 
 way. If this was to be considered in the nature of a mortgage; it 
 would be delivering up the ship for such a time as the mortgage 
 should be in force ; therefore I think there is nothing appearing upon 
 this evidence that discharges Crawford as the owner of the ship." 
 
 In the case of James v. Jones and others {a), an action was 
 brought against the defendants, as owners of the ship SeaJJoioer, for 
 the loss of a quantity of raisins on a voyage from Faro to London. 
 One Thomas, the master of the ship, had, in his own name as master, 
 and in the absence of the owners, chartered the ship to Reed and 
 Parkinson, on a voyage from Falmouth to Faro, and back to London ; 
 and Reed and Parkinson engaged by the charter-party to provide a 
 full lading from Faro, and to pay a stipulated price per ton. The 
 goods in question were shipped at Faro, by the consent of the agent 
 of Reed and Parkinson at that place, and Thomas, the master, signed 
 a bill of lading, engaging to deliver them to the plaintiff, " he paying 
 freight per charter-party," These facts appearing at the trial of the 
 cause before Lord Kenyon, he was of opinion, that Reed and 
 Parkinson were, with respect to the plaintiff, the owners of the ship 
 pro hac vice ; that the defendants, Jones and others, were not 
 responsible to him, and consequently that the plaintiff could not 
 maintain his action. The plaintiff" and his counsel did not apply to 
 the court for a further consideration of the subject ; but the before- 
 mentioned case of Parish v. Crawford does not seem to have been 
 adverted to on this occasion. 
 
 In a more recent case, in which it appeared at the trial that a 
 ship had been chartered by the defendants, who were the regis- 
 tered owners, to one De Beur, and was afterAvards put up by him 
 as a general ship, and that the plaintiff had shipped a quantity 
 of oats Avhich had been improperly sold by the master, and foi- 
 which the action was brought, Lord Ellexborough held the 
 defendants not answerable, and the plaintiff was nonsuited. The 
 form of the bill of lading is not noticed in the report of this case, and 
 therefore, I presume, it was not thought material at the trial {h). 
 The gentlemen who were counsel for the plaintiff in this cause were 
 certainly aware of the case of Parish v. Crawford, but they acquiesced 
 in the decision.] 
 
 (a) Guildhall Sltt. after Triii. Term, 39 {b) Mackenzie V. Sowe, 2 Campb. 482. 
 Geo. 3. There is a short note of this case 
 ill Esp. Nisi Prius Cases, vol. 3, p. 27.
 
 7. LIABILITIES OF CUARTERERS, &C. 
 
 [These two cases are inconsistcut with the former, but they are 
 cont'orniahle to the principle of judgments pronounced respectively 
 by the Courts cif Queen^s Bench and Common Pleas on questions of 
 insurance, wherein it was decided, first {c), that a deviation com- 
 mitted by the master, with the knowledge of the owner, and which, 
 therefore, could not, according to the law of England, be an act of 
 barratry with respect to Jiim, was an act of barratry with respect to a 
 third person who had hired the ship by a charter-party, and who was 
 considered as owner for the particular voyage, with relation to the 
 subject of that cause; secondly [d], that a wilful running of a ship 
 ashore by the owner, with the privity of the master, was an act of 
 barratry against the merchant, under whose sole control the entire 
 vessel for a time was placed. They arc conformable also to the 
 principle of another decision. The registered owner of a ship let the 
 vessel at a certain rent to the person who acted as master; this 
 person ordered stores, which were supplied for the use of the ship, 
 and for which an action was brought against the registered owner, 
 but it was held that he Avas not answerable, because '' during the 
 existence of the lease" the master was not his servant, nor was the 
 order given on his behalf (e). And probably the case of Parish v. 
 Crawford is not to be considered as law ; for although the absolute 
 owner might in each of these cases be ultimately answerable to the 
 charterer of tlie ship, yet there was no contract, either express or 
 implied, between him and the proprietors of the goods (/) .] 
 
 Chap. 1. 
 
 (c) Vallejo V. Wheeler, Cowp. 143. 
 id) Soares v. Thornton, 7 Taunt. G27. 
 
 (e) Frazer \. Miirsh, 2 Campb. 517; 13 
 East, 238, 
 
 (f) Arc these cases inconsistent with each 
 other P The chartcr-pirtics in Mackenzie 
 V. Soioe, and James v. Jones, are not set 
 out in the reports of those cases. They, 
 probahly, like the charter party in Frazer v. 
 Marsh, were such as to transfer the posses- 
 sion of the ship from the absohite owners to 
 the charterers, so as to make the master and 
 the crew the servants of the latter, and the 
 contracts of the master the contracts of the 
 charterers. Tliis was plainly not the effect 
 of the charter-party in Parish v. Crawford, 
 for there the owner appointed the master, 
 covenanted for his good behaviour, and re- 
 served to himself the freight of passengers. 
 From the re])0i-t of that case, in 2 Strange, 
 1251, it also appears that bills of lading for 
 the moidores were signed by the master. 
 Those bills, it is submittetl, were evidence of 
 an express contract, between the shippers of 
 the goods and Crawford, by whom the 
 master was appointetl and employed. If 
 that be so, Parish v. Crawford does not 
 appear to be inconsistent with principle or 
 with other decidetl cases. It could hardly 
 have been determined otherwise consistently 
 with the doctrine of the civil law. Omnia 
 
 facta magistri dabet prcestare qui eiim 
 
 praposuit — alioqitin contrahentes decipe- 
 rentitr — upon which passage of the Digest 
 (lib. 4t), Valin cites with approval this 
 connncntary of Peckius : — " Quid enim 
 interest per se exercitor, an per eum quern 
 ipse subsiituif confracfum ineat ? — qui enim 
 aliquein prceponif, is clard et apertd voce 
 dicere videiur, hunc ego proeposui, qui volet 
 cum eo contrahat." — Comm. sur I'Ordou- 
 uance, liv. 2, tit. 8, art. 2. 
 
 Exercitor autem eum dicimus ad quern 
 ohcentiones ct reditus omnes jHrveniunt, 
 sire is dominus navis sit sice a domino 
 navem per aversionem condnxif, rel ad at 
 tempus, vel in perpetuum, — Dig. lib. 14, do 
 Exercitoria Actione. 
 
 According to this definition, Fletcher, in 
 the case of Parish v. Crauford, was neither 
 dominus nor exercitor navis. He might, to 
 be sure, employ the master as his agent, to 
 make contracts for bis benefit with the ship- 
 l)ers of goods, and he liable upon such con- 
 tracts ; but the question was whether parties 
 dealing with the master of the ship as master, 
 were not entitled to seek compensation for 
 the loss of their goods from the person to 
 whose servant, acting as such, they had been 
 entrusted for safe carriage ? " The question," 
 says Lord TEyxERDEy in the three first 
 editions of this woik, " appears to have been 
 rather a matter of form than of substance, 
 for it seems clear that the owners were in
 
 28 OWNEES OF SHIPS. 
 
 Part I. lu all such cases the real question appears to be^ Whether the 
 
 contract of the proprietors of the goods Avas made Avith the absolute 
 
 owner^ or with the charterer of the vessel^ and its decision will 
 generally depend upon the further question^ who was the immediate 
 owner in possession of the vessel at the time the contract AA^as made ? 
 In the case of an actual demise of the A-essel, it is not disputed that 
 the lessee becomes for the term to all intents and purposes the owner. 
 Whether there be such a demise to him as constitutes him owner for 
 the term, is to be collected from the language of the charter-party 
 and the nature of the ship's employment. The contract between the 
 shipowner and the merchant may be locatio nnvis, a demise of the 
 ship itself Avith its furniture and apparel ; it may be locatio navis et 
 operarum mugistri, a demise of the ship in a state fit for the pur- 
 poses of mercantile adA^enture {a) ; or it may be locatio operis 
 vehendarum mercium, a contract for the carriage of the merchant's 
 goods in the owner's ship, and by his serA^ants. 
 
 Respecting the first of these modes of demise no difficulty is likely 
 to arise ; but on the question whether the charter-party be a demise 
 of the second kind, or a mere contract for the carriage of the mer- 
 chant's goods in the owner's ship, and by his serA^ants, the solution of 
 most important points in the maritime law of England and America, 
 and among them the responsibility of the general owner to third 
 parties, depends [b). 
 
 In a question of construction it is impossible to lay doAvn a rule of 
 universal application ; but it seems to result from the cases decided 
 upon this subject, that when by the terms of the charter-party the 
 master and mariners are to continue subject to the orders of the ship- 
 OAvner, he retaining through them the possession, management, and 
 control of the vessel, it is to be considered as a contract to carry the 
 freighter's goods ; but where the merchant engages to pay a stipvilated 
 price to the shipowner for the use of his ship for the voyage, by the 
 month or year — takes it and them into his serAice — aud receives the 
 freight actually earned by it to his OAvn use, the master and mariners 
 becoming subject to his orders, and the general management and 
 control of them and of the vessel being given up to him, it is a 
 demise of the vessel with her crcAV for the voyage, for the term 
 specified; the charterer becomes oAA'ner^^ro ^«c vice (c), entitled to 
 
 each case {Parish v. Crawford and James (c) The question who is to be considered 
 
 V. Jones) liable to an action at the suit of as owner for the voyage in cases of charter- 
 
 the person to whom the ship was chartered, party, so as to create a liability for repairs 
 
 and who might have sued and recovered or breaches of duty, has been several times 
 
 the damages for the benefit of the merchants litigated in the American Courts. In an 
 
 whose goods were lost." See JlifcJiell v. action on a policy of insurance, brought by 
 
 /SArai/e, 4Camp. 298,^o*#,part lY., ch. 2.— the plaintiff to recover for a loss iu the 
 
 Mr. Justice Shee. voyage, one of the losses being assigned to 
 
 (a) See the observations of TiXDAL,C..T,, be barratry by the master, the question 
 
 iu the case of Kewherrj/ v. Colviii, 7 Bing. arose, AVho was owner for the voyage ? The 
 
 190, post, 30; Pothier, Traite de Charte court, in delivering the judgment, said, " A 
 
 Partie, p. 1, s. 5. person may be owner for the voyage who by 
 
 (6) See j)osi, Lieu for Freight, Stoppage a contract with the general owner hires the 
 
 in Transitu, ship for the voyage, and has the exclusive 
 
 possession, command, and navigation of the
 
 7. LIABILITIES OF CHARTERERS, &C. 29 
 
 the rights, and subject to the responsibilities which attach to that Chap. 1. 
 cliaracter. 
 
 Tluis in the case of M'Kenzie v. Rowe, above cited, the proof of 
 the charter to Dc Beur, and of the vessel's being put up by him as a 
 general ship, showed tliat she was under his control and manage- 
 ment, and that the shipper's contract was with him. 
 
 So in the case of the TrlnUij House v. Clarke {d), which was an 
 action of assumpsit for tolls claimed to be due from tlic defendant, as 
 owner of the ship Britannia, in respect of certain lights on the coast, 
 and of the buoys and beacons coming up the Thames ; the defendant 
 having chartered his ship to the commissioners of the transport ser- 
 vice, on behalf of the crown, the question was, "Whether he was 
 liable to pay any portion of these tolls during the time she was in 
 the service of the transport board ? On the part of the defendant 
 it was contended that the crown, during the period of the ship's 
 employment under the charter-party, was to be considered as owner 
 of the ship, and that the defendant was not liable to pay the tolls. 
 
 " It is urged," said Lord Ellenbouough, " that the use and service 
 only of the ship are parted with, and that the possession and owner- 
 ship arc retained, by the conduct and navigation being left to the 
 master and crew, who are the servants of the proprietors of the ship, 
 chosen, and fed, and paid by them. We arc, however, of opinion, 
 that the arguments tending to show that the possession passed to the 
 crown during the term and service of the ship outweigh those which 
 lead to the contrary conclusion. The terms are proper terms of 
 grant and demise ; the sum to be paid is in the nature of rent for the 
 use of a chattel ; the whole use of the ship is warranted ; the terra is 
 sufficiently fixed, and the certificates, which the parties are to procure 
 to entitle them to the rent, are worded so as to recognise the posses- 
 sion. In truth, the supposed reservation of the possession to the 
 master and crew is not exclusive, as is contended for. The occupation 
 
 ship. Such is understood to have been the The same doctrine was stated by the 
 
 case in VaUejo v. Wheeler, Cowp. R. 113. Supreme Court of New York in Mclntyre 
 
 But where the general owner retains the v. Browne, 1 John R. 229. A. chartered a 
 
 possession, command, and navigation of the vessel to B. & C. for a particular voyage, 
 
 ship, and contracts to carry a cargo on retaining half the cabin, and certain privi- 
 
 freight for the voyage, the charter-party is leges for the master and mate, and covenanted 
 
 considereil a mere affreightment, sounding to hire and pay the master and men, and 
 
 in covenant, and the freighter is not clothed furnish provisions for the voyage, &c, The 
 
 with the character or legal responsibility of court said the true distinction was, " that 
 
 ownership. Such was the case of Jloole v. where by the terms of the charter the ship- 
 
 Q-roverman, 1 Cranch, 214, in this Court, owner appoints the master and mariners. 
 
 In the first case, the general freighter is and retains the management and control of 
 
 responsible for the conduct of the master the vessel, the charter is rather to be con- 
 
 and marines during the voyage; in the latter sidered as a covenant to carry goods; but 
 
 case, the responsibility rests on the general whei'e the whole management is given over 
 
 owner. On examining the charter-party in to the freighter, it is more projierly a hir- 
 
 the present case, there can be no doubt, from ing of the vessel for the voyage, and in such 
 
 the terms and stipulations of it, that it falls case the hirer would be deemed owner pro 
 
 within the latter class of cases. The master, JiAc vice." — Mr. Justice Story's note to 
 
 who was the general owner, retained the ex- the American edition, p. 23. See also Kent, 
 
 elusive possession, command, and navigation Comm. Edinb. edit. p. 134. — Mr. Justice 
 
 of the vessel, and she was navigated at his iShee. 
 
 expense during the voyage." {d) 4 M. & S. 288,
 
 30 owni:;rr op ships. 
 
 Part I. of the different habitable parts of the ship is arranged by the terms of 
 
 the contract,, and a place provided for the residence of the agent for 
 
 the crown. The whole argument appears to rest on a fallacy ; the 
 possession^ such as it is^ of the master and crew is not retained by 
 the proprietors of the ship to restrain or interfere with the full and 
 free use of the ship, which they have let to hire for a term, but as 
 subsidiary and subservient to such use ; it is not only consistent with 
 the entire ownership and possession of the vessel, on the part of the 
 crown, during the period for which it is let, but it is a further means 
 provided to enable the crown fully and beneficially to enjoy the same, 
 by lettingat the same time out to the crown the services likewise of 
 those by whom the vessel might be best conducted^ under the direc- 
 tion of the crown, in the prosecution of the object for which the crown 
 hired it. The vessel^ therefore^ is not only hired^ but along with it 
 the services also of a certain number of persons paid by the pro- 
 prietors ; and these services are necessary to the use of the vessel 
 which the proprietors have expressly warranted to the crown. It is 
 the same thing as the hire of a waggon and team for a certain time ; 
 the proprietor of the waggon stipulating that the waggon should be 
 driven and the horses taken care of by his own waggoner, and by 
 whom he was to be fed. In such a case it could hardly be made a 
 question that the waggon and team were in the possession of the 
 hirer during the harvest^ or whatever the term may be for which 
 they were hired. This is, indeed, idem per idem ; but as the instance 
 is more familiar, it serves to put the point in a clearer light.^^ 
 
 This decision proceeds not upon any particular words, though due 
 weight is given to every word, but upon the terms of the charter- 
 party altogether, reference being had to the object and nature of the 
 service in which the ship was employed. INIany other cases, which 
 will be noticed in another part of this work, have been determined on 
 the same grounds. The case of Neivberry v. Colvin and another, in 
 the Exchequer Chamber, may properly be considered here. 
 
 It was an action on the case against Newberry, the defendant 
 below, for the loss of goods shipped by the plaintiff in India, to be 
 conveyed to England. 
 
 The goods were shipped by the plaintiff on board the Benson, and 
 bills of lading, in the usual form, were signed for them by George 
 Betham, then being master of the vessel, under a charter-party, in 
 substance, as follows (a) : — 
 
 The owner appointed Betham to the command, and he agreed to 
 take the command, and receive the ship into his service for twelve 
 months certain, and such longer time as might be necessary to com- 
 plete the voyage, and pay to the owner for the use and hire of the 
 ship after the rate of twenty-five shillings per ton per month. And 
 it was further agreed, that the said Betham was to provide, at his 
 own expense, all necessaries for the use of the passengers on board 
 
 (a) 7 Biugh. 190. The judgment of the refer to the report. The charter-party is 
 Ex. Ch. was affirmed in the House of Lords, too long for insertion here. 
 1. C. F. 283. The reader is requested to
 
 7. LIABILITIES OF CHARTEEEES, &0. 31 
 
 the said ship^ pay and defray all port charges and pilotage, remit all Chap. 1. 
 
 freight bills, for the homeward cargo, to B. B. and Co., in Loudon, 
 
 ■who should hold them as joint trustees for the owner and Betham ; 
 that they should be applied to payment of the balance of freight due 
 from Betham, and the surplus, if any, be handed over to him. It 
 was then provided that the owner should have an agent on board, 
 who was to have the sole management of the ship's stores, and power 
 to displace Betham for breach of any covenant in the charter-party. 
 
 The plaintiffs below shipped their goods with knowledge of the con- 
 tents of this charter-purty [b). The ship sailed on her voyage from 
 the river Hooghley, but the goods were never delivered to the 
 plaintiffs or their assigns, pursuant to the bills of lading. 
 
 The arguments for the ])laintiffs below will ])e collected from the 
 judgment of the Court of Error, reversing that of the Court of King's 
 Bench. 
 
 '' The present action," said Chief Justice Tixdal, '' although in 
 form an action upon a tort, is virtually and substantially an action 
 upon the contract contained in tha bills of ladiny, and set out in the 
 declaration. To decide, therefore, whether the action was rightly 
 brought, it must be ascertained with whom the contract was made ; 
 whether with the defendants below, as the owners of the vessel, 
 through Betham, as their master or agent, or with Betham himself, 
 as the freighter and owner pro hdc vice for his own benefit, and on 
 his own behalf. The question to be considered is simply that of the 
 construction of the charter-party ; and we think, upon the whole 
 instrument taken together, the construction is such as to constitute 
 Betham, as between him and the shippers of goods, the owner of the ship 
 during the continuance of the voyage described in the charter-party. 
 
 " In the first place, by the terms of the charter-party, the owners 
 covenant ' that the ship shall, if required, be kept and continued in 
 the service described therein during the term of twelve calendar 
 months, and such longer time as may be necessary to complete the 
 voyage ; ' and Betham, on the other hand, covenants ' to accept, 
 receive, and take the ship into his service, for the term of twelve 
 calendar months certain, until the voyage shall be ended, and to pay 
 to the owners for the use or hire of the said ship at and after the 
 rate of twenty-five shillings per ton per calendar month, during the 
 said term of twelve calendar months certain, and until her return to 
 the port of London and clearance, or up to the day of her being lost, 
 captured, or last seen or heard of.' 
 
 ''But it is objected by the plaintiffs below, that such contract 
 contains no words of express demise, and undoubtedly it does not. 
 But even in a lease of lands no such words are absolutely necessary, 
 * but any words which amount to a grant are sufficient for a lease ' (c). 
 And there are cases in the books, that if a man covenants that A. 
 shall have the land for a term, rendering rent, or that the covenantee 
 shall enjoy the land [d], these words would amount to a lease. Now, 
 
 (J) See Majoi' v. JF/iife, 7 Carr. & (<•) Co. Lit. 45, b. 
 Payne, 41. ('0 1 Leouard, 136.
 
 32 
 
 OWNERS OF SHIPS. 
 
 Part I. the present case comes very near tliose referred to ; for the OAvners 
 do covenant that the sliip shall be kept in the service of Betham for 
 a certain time. Betham covenants that he will receive her into his 
 service during that time^ and that he will pay for the use or hire of 
 her a certain freight — stipulations that appear equivalent in their 
 effect to an actual demise of the ship. But further^ the whole of the 
 ship is so far parted with that it is thought necessary that Betham 
 should covenant with the owners that they should have liberty to load 
 on the outward voyage iron and other articles_, not exceeding in the 
 whole one hundred tons. 
 
 " Again_, the mode in which the ship was to be used, and in which 
 the freight reserved by the charter-party is to be paid, supports the 
 same construction of the charter-party. The sliip, both on her out- 
 ivard and her homeward voyage, was to he put up by Betham [in many 
 parts of the charter called the freighter) as a general carrying ship. The 
 freight which the owners stipulate to receive from him is quite inde- 
 pendent of that which he receives for the carriage of goods. Theirs 
 is a time-freight ; his depends upon the carriage of the goods shipped. 
 If the ship went out without any cargo, or was lost before her arrival 
 at her outward or homeward port of destination — in all which cases 
 Betham might receive no freight — the owners would still receive the 
 same amount as if she had returned full, or, in case of loss of the ship, 
 up to the day of her loss. Under these circumstances, we think the 
 captain, in putting up the ship as a general ship, and signing bills of 
 lading, cannot be considered as acting as the servant of the shipowners, 
 or in any other manner than as the temporary owner of the ship. It 
 is almost the invariable practice and usage, that the owners of a ship, 
 although they let it out upon freight to a charterer, do themselves 
 appoint a captain and the crew, the chartering of the ship not being so 
 much the chartering of the hull, as of the ship in the state fit for the 
 purposes of mercantile adventure. There seems no reason, therefore, 
 that the chartering of the ship in any particular case to the captain of 
 that ship should create any more responsibility in the owner to the 
 shippers of goods, where such fact is made known to them, than if 
 the ship were freighted to an entire stranger. 
 
 "^ With respect to the agent appointed by the owners, it appears 
 that his authority was limited to the superintendence of the acts of 
 Betham as captain, and not as freighter; the utmost authority given 
 to the agent being that of displacing the master and appointing 
 another, in case Betham should be guilty of a breach of any of the 
 covenants or agreements on his part. But if Betham ceased to be 
 master, he did nevertheless, by the terms of the charter-party, con- 
 tinue the freighter of the ship, possessing the same power to take 
 goods on board, and liable to the same responsibilities,— on the one 
 hand, to the owners for the time-freight for which he had contracted ; 
 on the other hand, to the shippers of goods for the safe conveyance 
 of the goods shipped. 
 
 '' As to the freight bills received by the freighter, the charter-party 
 gives the owners a security upon them, but no strict or immediate 
 interest in the freight earned, the whole of the surplus of which
 
 7. LIABILITIES OF CHARTERERS, &C. 33 
 
 belongs to Bethara. If Betham had obtained no homeward cargo Chap. 1. 
 from Calcutta, so that no frcij^ht bills could have been transmitted, 
 the owners woukl have still been entitled to their time-freight. The 
 freight earned by Betham in the intermediate voyage for twelve 
 months in India, does not become a security to the owners. Even 
 in tlie homeward voyage, if the ship had been lost, there might have 
 been no freight payable, but still he must have made good his own 
 liability to a monthly freight for the use and hire of the vessel. Upon 
 the svhole, therefore, we think the effect of this charter-party was to 
 make the freighter the legal owner of this ship pro tempore, that the 
 freight for the carriage of these goods was paid to him for his own 
 nse, and, consequently, that the defendants are not liable to an action 
 for non-delivery of the goods/' 
 
 The case of Nemberry v. Colv'ui was afterwards taken to the House 
 of Lords, and the judgment of the Exchequer Chamber there 
 affirmed (a). It will be seen that it was determined upon a minute 
 consideration of the effect of all the covenants in the charter-party, 
 regard beiug had to the purpose and object of it, and the nature of 
 the ship's employment. The result of that considci-ation was, that 
 Betham, by the charter-party, was constituted, as between him and the 
 shi/'pers, oivners! pro hue vice of the vessel ; that he contracted with 
 them, not as the agent of the owners, but on his own account, and 
 therefore that he, and not the owners, was liable to the shippers for 
 the non-delivery of their goods, pursuant to the bills of lading. 
 
 From these cases it appears that the question whether or not tlie 
 possession of a vessel passes out of the owner to a charterer, depends 
 npon no single fact or expression, but upon the whole of the language 
 of the contract, as applicable to its attendant circumstances. The 
 case of Dean v. Hogjj and Lewis {b) may be referred to in further 
 illustration of this rule of construction. The defendant Lewis had 
 hired a steam-boat for a party of pleasure to Richmond, upon the 
 terms disclosed in the following letter from the owner : " I note the 
 Adtdaide is engaged to you for Richmond or Twickenham, for Tues- 
 day, the 28th of May. at the hire for the day of 5/. lO^., your party not 
 exceeding fifty persons." The vessel was navigated by a captain and 
 crew employed and paid by the owner. As she was about to start 
 from a quay in London, the plaintiff, a stranger to the defendants, 
 and not aware that the vessel had been hired by Lewis for the day, 
 stepped on board, with the permission of the captain. The plaintiff, 
 beiug harshly warned to leave the vessel, refused to go, whereupon 
 the defendants pushed him into a boat alongside. 
 
 For this assault the plaintiff brought an action of trespass ; and 
 having obtained a verdict, with damages, the question, upon a motion 
 to set aside the verdict and enter a nonsuit, was, Avhether, under 
 the contract with the owner, above stated, Lewis had such possession 
 of the steam-vessel as would support the defendants' second plea, 
 
 (a) 1 Clark & Fin. 283. See Sande- (i) 10 Bing. 345; Belcher v. Capper, 
 
 man v. Scurr, L. R. 2 Q. B. 86; the 4 M. &, G. 502, See Sack v. Ford, 32 
 Figlia Maggiore, L. R. 2 Ad, 106, L. J. C. P. 12. 
 
 D
 
 34 OWNEES OF SHIPS — 
 
 Part I. whicli alleged tliat tlie defendant Lewis was lawfully possessed of 
 ■ the steam-yessel ; that the plaintiff was unlawfully in the steam- 
 vessel, from which he would not depart when requested ; and then 
 justified the committing of the trespasses by the defendants, in defence 
 of the possession of Lewis, and in order to remove the plaintiff from 
 the vessel. " Tliere can be no doubt/^ said Chief Justice Tixdal, 
 '^that, upon such a contract, the defendant Lewis would be entitled 
 to the full enjoyment of the vessel for himself and his party, free 
 from the intrusion of any stranger. The circumstances of the case, 
 and the object of the voyage, necessarily imply it ; so that if the 
 captain afterwards admitted any other passengers for hire or freight 
 to Richmond fas, in fact, he did admit the plaintiff), such admission 
 would amount to a breach of contract between him and Lewis, for 
 which the latter might have recovered compensation in damages. 
 But the question here is, whether, under this contract, Lewis had 
 such an exclusive possession of the vessel as would justify him in 
 forcibly putting the plaintiff out of the vessel, admitted, as he had 
 been, by the captain, in defence of his possession ; and we think he 
 had not. Here there was no express contract for the exclusive 
 possession of the vessel by Lewis, and there could be no object or 
 purpose in considering the A-essel as taken out of the possession of the 
 owners, and put into the possession of Lewis. All that the defendant 
 Lewis bargained for was, that he and his party should be carried, by 
 the captain and the crew on board the Adelaide, to Richmond, with- 
 out the addition of strangers ; and such a contract might be well 
 carried into effect, without considering the possession changed from 
 the owners to Lewis. The captain and the crew, who continued in 
 the management of the vessel, were the servants of the owners, not of 
 Lewis. There were some parts of the vessel manifestly not in the 
 possession of the defendant Lewis, and some parts to which he had 
 even no right of access or entry, such as the parts occupied by the 
 crew, the room containing the machinery, and the like. If the 
 captain had carried goods to Richmond for other persons, to any 
 extent short of incommoding the defendant Lewis and his friends, he 
 could not have prevented it, either by removing the goods, or by action 
 against the owners, all which considerations tend to show the pos- 
 session was never given up. The merely putting Lewis in possession 
 of the vessel would have been nothing. The main part of the con- 
 tract remained to be performed by the captain and the crew — \\z., the 
 carrying him and his party to Richmond and back again, for which 
 purpose it was essential they should remain on board, and retain the 
 management and conduct of the vessel. Looking, therefore, at the 
 object and intention of all parties, we think the exclusive possession of 
 the vessel did not pass to the party hiring the vessel for the limited 
 purpose of being carried to Richmond and back, and consequently 
 that the plea is not established."^ 
 
 The true question, when an action is brought for an injury occa- 
 sioned by the negligent management of a vessel chartered for a 
 voyage, is. Whose servants had the direction and management of the 
 vessel at the time of the injury complained of? and if, on the con-
 
 7. LIABILITIES OF Cn.VBTERERS, &C. 35 
 
 struction of the charter-party, the master and crew are to be con- Chap. 1. 
 
 sidered to be the servants of the owner, he will be held responsible 
 
 for the injury. In the case of Fletcher v. Braddick [a), the owners 
 had let their ship for six months, by a charter-party, to the commis- 
 sioners of the navy, who had put on board a commander in the navy, 
 who had the command of the ship, and also a King's pilot, who gave 
 orders to the seamen. The charter-party contained covenants on the 
 part of the OAvners that they would provide a crew, and pay and main- 
 tain them ; that they would repair the sliip and supi)ly her with stores 
 (the guns and ammunition were to be found by the government) ; 
 and that the master should obey the orders and instructions of the 
 naval commander; on the part of the commissioners that they 
 would pay a certain freight, and that if the ship was destroyed by the 
 enemy, the government should pay for the loss or injury. The 
 action was brought against the owners for running down the ships of the 
 plaintiffs during the time of the hiring. On this case the Court 
 of Common Pleas gave judgment for the plaintiffs, and said, '* Not- 
 withstanding the charter-party entered into between the owners and 
 the commissioners of the navy, the ship belonged to the defendants. 
 It was navigated by a master and sailoi's provided l)y them ; and it is 
 sufficient to say that it is to ])e considered as their ship with regard to 
 all the world, except the commissioners of the navy.^' 
 
 This decision is not perfectly satisfactory. It was stipulated by the 
 charter-party that the master and crew should obey the orders of the 
 naval commander, M'ho was appointed by the crown, and who certainly 
 was not the servant of the owners. Chief Justice Maxsfield said, 
 "It was doubtful whether by obeying the orders of the officer, it was 
 meant that the officer should see to the navigation, and direct the 
 motion of the ship, or only direct to what place the ship should be 
 carried for the purpose of being employed against the enemy." The 
 case was hardly ripe for judgment until that doubt had been removed. 
 
 The case of Fenton v. The Dublin Steam Packet Company (6) was 
 an action against the owners of a steam -packet for an injury done to 
 the plaintiff's keel, through the negligence of the crew of the steam- 
 packet. 
 
 The declaration alleged that the defendant's M'ere possessed of the 
 steam-vessel, and by their servants and mariners had the care, direc- 
 tion, and management of the same ; and this allegation was put in 
 issue by the plea. The vessel, when the misfortune occurred, was 
 employed under the following memorandum of charter-party : — 
 
 ^' It is this day mutually agreed between the City of Dublin Steam 
 Packet Company, owners of the steam-vessel, on the one part, and 
 John Dails, &c.,'on the other part, that the said company agree to 
 charter with J. D. the said steamer for the space of six months, to 
 be paid for the same at and after the rate of 20/. per week ; the 
 owners to keep the vessel in good and sufficient order for the con- 
 veyance of goods, merchandise, and passengers ; to run from New- 
 
 (a) 2 New Rep. 182. (i) 1 Per. & Dav. 103 ; 8 Adol. & El. 1830. 
 
 d2
 
 30 OWNEES OF SHIPS — 
 
 Part I. castle and Goole^ or any otlier coasting station whicli the said J. D. 
 
 may, from time to time, employ the said vessel in; the said J. D. to 
 
 pay all disbursements incident to the working the said steamer, 
 including harbour dues, pilotages, seamen's and captain's wages, and 
 provide coals and oil, tallow, &c., for engines, and to insure the vessel 
 for 3,000/. : the policy to be deposited with the company before 
 named/' 
 
 The master of the steam-vessel proved that himself, the crew, and 
 engineers were appointed by the defendants or their agents, but that 
 they were all paid by Dails, the charterer ; that he obeyed the orders 
 of Dails as to where the vessel was to go, but not as to the mode of 
 navigation ; that at the time of the accident Dails was on board, 
 and that the vessel was going, by his direction to Newcastle. On 
 these facts it was contended, that the vessel was demised to the 
 charterer, that the crew were his servants, and therefore that he, 
 and not the owners, must be liable for their negligence. ]?ut the 
 court was of a different opinion. " It is conceded,'-' said Mr. Justice 
 Patteson, " that the accident happened through the negligence of 
 the crew, so that the real question is, "Whose servants were they ? 
 Looking at the charter-party itself, I have no doubt they were the 
 servants of the owners of the vessel. The charterer is to pay dis- 
 bursements, but is not required to provide anything ; he is to pay 
 wages, but is not required to appoint servants : the inference is, that 
 the owners were to provide everything, and to have servants of their 
 own choosing" («). 
 
 The question, therefore, whether the owner or the charterer be 
 liable for injuries caused by the negligence or unskilful management 
 of the vessel, is to be determined by the terms of the instrument of 
 charter, as explained by the circumstances of each particular case. A 
 charter-party, as we have seen, may be, and most commonly is, a mere 
 contract to carry goods ; it may be a contract for the hire of a ship 
 manned and equipped for mercantile adventure ; or it may be, what it 
 veiy rarely is, a lease of the hull of a ship, to be navigated by a master 
 and mariners hired and paid by the charterer. In the first case, no 
 doubt can exist that the crew remain the servants of the owner ; in 
 the second, a possession, subservient to the employment of the vessel 
 by the charterer, and a control over the mode of her navigation, may 
 still be retained by the owners through their servants, the master and 
 mariners, whose services they have let with the ship, and for whose 
 negligence or unskilfulness in its management, and for whose acts, 
 other than the contracts into which, by the agreement between 
 the owners and the charterer, the master, as his agent, may 
 have entered into, they continue to be {b) responsible. But if 
 injury be done by the negligent or unskilful management of a ship, 
 the possession and control of which had so completely passed to the 
 
 (a) See QK«nna» V. BiirHfifi', 6 Mee. & W. (J) Schuster v. McKellar and Yoiinq 
 
 499. Aud Martin v. Temperley, 4 Q. B. 7 E. & B. 704; 26 L. J. Q. B. 281. 
 Kep. 429. McLaughlin v. Prior, 4 M. & 
 Gr. 48.
 
 7. LIABILITIES OF CHAETEEEES, &C. 37 
 
 charterer, that lie appointed the master and crew, and directed not Chap. 1. 
 only her destination and employment, bnt the mode of her navigation, 
 then he, and not the absolute owner, -would be held responsible for 
 the misfortune (c) . 
 
 The captain of a sloop of war was held not answerable for damage 
 done by the running down of another vessel, the mischief having 
 occurred during the watch of the lieutenant, who was upon deck, and 
 had the actual direction and management of the steering and navi- 
 gating of the sloop at the time, the captain not being on deck, and 
 it not being his duty to be there {(l) . 
 
 It has been held also that the owners of a transport vessel employed 
 by the government are not (because not guilty of negligence) liable for 
 damage done in the execution, by their servants, of positive orders of 
 an officer of the royal navy under whose command she was, unless the 
 circumstances had so altered after the order given, as to render it no 
 longer applicable, and to call for the exercise of seamanship, through 
 defect of which the damage took place [e). 
 
 (c) Scoff V. Scott, 2 Starkie, 348. (e) Ilodfflrlnson v. Feniie, 2 C. B. 415 j 
 
 (rf) Nicholson V. Mounsey, 15 East, 381. 26 L. J. C. P. 217.
 
 38 PEOPEETY IX BRITISH SHIPS — EEGISTEY. 
 
 Part I. 
 
 CHAPTER II. 
 
 OF PROPERTY IX BRITISH SHIPS j AND OF THE HISTORY, POLICY, AND 
 REGULATIONS OF THE REGISTRY ACTS; AND HEREIN, 
 
 Sect. 1. The Description and Otcnership of British Ships, p. 41. 
 
 2. Tlie Measurement of Tonnage, p. 42, 
 
 3. The Segi-stry of Ships, p. 42. 
 
 4. Of the Certificate of Hegistn/, p. 46. 
 
 0. Of Transfers and Transmissions of Ships and Shares of Ships, p. 47. 
 
 6. Of Mortgages of Ships, -p. '^^. 
 
 7. Of Certificates of Mortgage and Sale, p. 50. 
 
 8. Of Hegistrg anew, and Transfer of Registry, p. 52. 
 
 9. Registry — Miscellaneous, p. 53. 
 
 10. Fistiery Boats, Lighthouse Boats, and Pleasure Yachts, p. 55. 
 
 11. Evidence of Declarations and Books of Registry, p. 55. 
 
 12. Offence of Forging or Fraudulently altering Documents, making False 
 
 Declarations, Sfc, p. 56. 
 
 [All commercial nations have, for the advancement of their indi- 
 vidual prosperity, conferred various privileges of trade upon the ships 
 belonging to their own countrymen ; and the legislature of this nation 
 has, for the same purpose, at different periods, enacted laws suitable 
 to the circumstances of the times, requiring fcr the exercise of some 
 particular branches of commerce, ships, not only of the property of its 
 own subjects, but also of the build of its own dominions — allowing 
 other branches to ships the property only of its own subjects, without 
 regard to the build ; and, in others, in which foreign ships were 
 suffered to participate, favouring those of its own subjects by a 
 difference in the rate of duties. It has, however, at all times been 
 the policy of the legislature to confine the privileges of our trade, as 
 far as was consistent with the extent of it, to ships built within the 
 King^s dominions ; but it was reserved for the reign of George the 
 Third to see the ship-building of the country advanced to such a state 
 as to warrant the confinement of these privileges exclusively to ships 
 of that description, or taken as prize in war. And, accordingly, this 
 measure was carried into execution by a statute, the 26 Geo. 3, c. 60, 
 reser^dng, however, to such foreign-built ships as were the7i the pro- 
 perty of his subjects, the privileges to which they were then entitled 
 by the existing laws. For the more effectual execution of this im- 
 portant measure of public policy, various new regulations were at the 
 same time introduced to ascertain the build and property of ships,]
 
 PEOPERTY IN BGtTISlI SHIPS — REGISTRY. 39 
 
 [which were afterwards improved by subsequent statutes {a), as ex- Chap. 2. 
 periencc showed that some particulars^ notwithstanding the great 
 attention paid to the original statute, and the great talents employed 
 in framing it, had not been sufficiently provided for by it. 
 
 The great, and, perhaps, the only original object of these statutes 
 ■was to advance tlie public policy of the state, by the notoriety of 
 property obtained through the medium of a public register, a measure 
 adopted, with numerous improvements, from the wisdom of former 
 times {b) . They were often, and upon the whole perhaps truly, con- 
 sidered beneficial in another point of view — namely, as calculated to 
 prevent the commission of private fraud upon individuals ; but the 
 instances in which fair and honest transactions arc rendered unavail- 
 able through a negligent want of compliance with the forms directed 
 by these and other statutes requiring a public register of conveyances, 
 make the expedience of all such regulations, considered with reference 
 to private benefit only, a matter of question and controversy. It 
 happened also with regard to these statutes, as to all others of a 
 similar kind, that doubts and difficulties arose upon their construc- 
 tion, and upon the application of general rules and enactments to 
 particular cases. The matters to be provided for were very numerous 
 and very various. The difficulty of framing positive regulations, even 
 for objects of a limited nature, is much greater than those who have 
 not tried the experiment themselves, or attended with candour to the 
 experiments of others, arc ready to admit. It will often happen, that 
 defects can be discovered, and inconvenience manifested, by experience 
 alone. After an experience of somewhat more than thirty years, it 
 ■was thought advisable to make many alterations, and to comprise the 
 whole subject in one statute, and, accordingly, all the former acts] 
 
 (a) 27 Geo. 3, c. 19 ; 3-1 Geo. 3, cc. -42, to tlieiu, whether built in France or foreign 
 
 G8 ; 35 Geo. 3, c. 58 ; 37 Geo. 3, c. 63. countries, and of the names of the several 
 
 (6) [The registering of ships appears to part-owners, who wei'e to be Frenchmen 
 
 have been first inti'oduccd into practice in only, and resident in France, in order to pre- 
 
 this country by the Navigation Act, 12 Car. serve the privileges of the national ^ag to 
 
 2, c. 18, s. 10, A.D. 1660, for it is not men- his own subjects. See Valin on the French 
 
 tioned in the Navigation Ordinance in the Ordinance, torn. i. 56 1-, &c. The first article 
 
 time of tlie usurpation ; but the statute of of theHanseaticOrdinanceof 1614prohibits 
 
 Charles the Second only requires foreign the building of ships in the Hanse Towns 
 
 ships, British owned, to be registered. Tlie to all except citizens, and persons having the 
 
 statute 7 & 8 Wm. 3, c. 22, s. 17, requires particular permission of the magistrates of 
 
 British or Plantation-built ships, British- the place. An Act of Congress of the 31st 
 
 owned, if intended to be employed in the of December, 1792, ch. 1, contains regula- 
 
 Plantation trade, and also prize ships, to be tions for registering ships in the United 
 
 registered. And ships for which Mediter- States of America, the greater part of which 
 
 ranean passes were wanted were also regis- correspond almost exactly with those of our 
 
 tered in consequence of a regulation at the statute of 26 Geo. 3, c. 60. The national 
 
 Admiralty, although a register was not privileges of trade are confined to ships 
 
 required by statute for British ships em- belonging to and commanded by citizens of 
 
 ployed in the Mediterranean trade, as we America, and either built within the United 
 
 learn from Reeve's History of the Law of States, or belonging to American citizens. 
 
 Shipping and Navigation, p. 423. Louis on the 16th of May, 1789, and continually 
 
 the Fourteenth, by an ordinance dated the thereafter, or taken and condemned as prize 
 
 2 4th October, 1681, required all his subjects in war ; or forfeited for a breach of the laws 
 
 to make a declaration in the Admiralty of of the United States.] 5th ed. [Tenter* 
 
 the place of residence of all ships belonging den.]
 
 40 PEOPEETY IN BEITISH SHIPS — 
 
 Part I. [were repealed, and a new statute passed in tlie fourth year of tlie reign 
 of George the Fourth, -which took effect for general purposes on the 
 1st of January, 1824 [a] . In the sixth year of the same reign, all the 
 statutes relating to the customs were repealed, in order to hriug the 
 "whole of that extensive and complicated subject into a very few Acts ; 
 and it being considered, that by this measure the Registry Act of the 
 fourth year of that reign was virtuallv repealed, the 6 Geo. 4, c. 110, 
 and 7 Geo. 4, c. 48, were passed.] These acts were superseded by 
 the 3 & 4 Wra. 4, c. 55, which, with some few modifications, was re- 
 enacted by the 8 & 9 Vict. c. 89, the Registry Act in force when the 
 9th edition of this work was published. So much of this last act as 
 limited the privileges of vessels registered at Malta, Gibraltar, and 
 Heligoland, and provided that no vessel should be registered which 
 was not of the build of the British dominions, and related to the 
 disqualification of ships repaired in a foreign country, and prevented 
 ships captured, or sold to foreigners, from being entitled to be again 
 registered as British ships, in case they again became the property 
 of British subjects, was repealed by the 12 & 13 Vict. c. 29, since 
 also repealed by the 17 & 18 Vic. c. 120. The object of the 
 legislature in those statutes was to confine the privileges of British 
 ships to ships of the build of the British dominions, navigated by a 
 certain proportion of British seamen, and duly registered. A British 
 ship was not absolutely required to be registered, but could not legally 
 exercise, and was subject to forfeitures for exercising, the privileges of 
 a British ship without being duly registered. 
 
 These privileges were much restricted, being limited to the coast- 
 ing trade of the United Kingdom and the Isle of Man, the trade of 
 the Channel Islands, and the coasting trade of the British posses- 
 sions, by the 12 & 13 Vict. c. 29, which extended the right of im- 
 porting goods into this country and her colonies, theretofore confined 
 to British ships, and to those of the countries of which the goods 
 were the produce, to ships of foreign build, owned by British subjects 
 residing abroad, or by foreigners who had been naturalized. 
 
 So much of this last statute as required every British ship to he 
 navigated by a master who was a British subject^ and by a crew of 
 whom a certain proportion were British subjects, was repealed by the 
 16 & 17 Vict. c. 131. 
 
 The Merchant Shipping Act, 1854 {b), 17 & 18 Vict. c. 104, is as 
 amended by subsequent statutes now in force. These statutes have 
 introduced a variety of important alterations of the law relating to 
 the ownership, measurement, and registry of British ships. 
 
 It will be convenient to consider these provisions according to the 
 
 {a) 4 Geo. 4, c. 41. The substance of tlieni, extending over 1,000 
 
 (6) On reference to the schedule of sections, was (with manv important altera- 
 
 the M. S. Repeal Act, 1854, 17 & 18 Vict. tions) condensed into 548, by the M. S. Act, 
 
 c. 120, it will be seen that nearly the 1854, 17 & 18 Vict. c. 104,\vhicli Act lias 
 
 whole of forty-seveu statutes, beginning been amended by subsequent statutes. The 
 
 with the 8th Eliz. 1.3, "Touching Sea marks sections of the ^I. S. A. 1854, are frequently 
 
 and Mariners," and endingwith the 17 & 18 referred to without the title of the act 
 
 Vict. c. 5, "An Act to admit Foreign Ships being prefixed to them, 
 to the Coasting Trade," has been repealed.
 
 1. DESCEIPTTON AND OWNEKSHIP OF. 41 
 
 order adopted by the legislature in their enactment, abstracting them, Chap. 2. 
 with occasional references to the former state of the law. and intro- 
 ducing or noticing such of the decisions on the former statutes as 
 seem applicable to or illustrative of the present, under the following 
 heads : — 
 
 1. The Description and Ownership of British Ships. 
 
 2. The Measurement of Tonnage. 
 
 3. The Registry of Ships. 
 
 4. The Certificate of Registry. 
 
 5. Transfers and Transmissions of Ships and Shares of Ships. 
 
 6. Mortgages. 
 
 7. Certificates of Mortgage and Sale. 
 
 8. Registry anew, and Transfer of Registry. 
 
 9. Registry — Miscellaneous. 
 
 10. Fishing Boats, Lighthouse Boats, and Pleasure Yachts. 
 
 11. Evidence of Affidavits, Books of Registry, Certificates, &c. 
 
 12. Offence of Forging or Fraudulently altering Documents, mak- 
 
 ing False Declarations, &c. 
 
 1. Description and Ownership of British Ships. 
 
 No ship shall be deemed to be a British ship, unless she belongs 
 to owners who arc natural-born British subjects (c), or persons 
 naturalized (d) or made denizens by letters of denization, or bodies 
 corporate, established under, subject to the laws of, and having their 
 principal place of business in, the United Kingdom, or some British 
 possession. 
 
 A natural-born subject who has taken the oath of allegiance to a 
 foreign sovereign or state, cannot be such owner, unless he has subse- 
 quently taken the oath of allegiance to her Majesty, and continues, 
 while owner, to be resident in her dominions, or member of a British 
 factory, or partner in a house carrying on business within her 
 dominions (e). 
 
 These conditions apply also to persons naturalized or made 
 denizens. 
 
 Every British ship must be registered under the Act — except 
 those registered before it came into operation, ships not exceeding 
 fifteen {J ) tons burden, employed on the rivers or coasts of the 
 United Kingdom, or of some British possession in which the 
 managing owners are resident, or ships not exceeding thirty tons 
 burden, not having a whole or fixed deck, and employed solely in 
 
 (c) See Beg. v. Arnaud, 9 Q. B. 817. were, imder 12 & 13 Vict. c. 29, s. 30 
 
 (/) See the Naturalization Act, 1S70, (repealed), admitted to be British ships, it 
 
 33 Vict. c. 1-4 : by sect. 14 of this Act the property of British subjects, and em- 
 
 " uothiug iu this Act contained shall qualify ployed in English and Colonial coast and 
 
 an alien to be the owner of a British ship." river navigation, and it has been held that 
 
 (e) Sects. 18, 38, 39, 53, 55. 81, and such boats or vessels misht be transferred 
 
 25 & 26 Vict. c. 63, s. 3. without a bill of sale, &c., as requiretl for 
 
 (/) Vessels not exceeding tliis tonnage transfer of other vessels.
 
 4^ PROPERTY IN BRITISH SHIPS 
 
 Part L fishing or trading coastudse on the shores of Newfoundland or parts 
 adjacent thereto, or in the Gulf of St. Lawrence^ or on such portion 
 of the coasts of Canada^ Nova Scotia, or New Brunswick^ as lie 
 bordering on such gulf. 
 
 Ships required by the Act to be registered shall not, if un- 
 registeredj be recognised as British ships. Officers of customs are 
 not to grant clearance or transire to the master of any ship who 
 does not, on being required to do so, produce the certificate of her 
 registry ; and may detain such ship if she attempts to proceed to 
 sea as a British ship without such clearance or transire [a) . 
 
 2. The Measurement of Tonnage. 
 
 For information respecting the mode o£ admeasurement, which 
 could be useful for any practical purpose, reference must be had to 
 the Act (17 & 18 Vict. c. 10-i) itself. The object of all rules for 
 measuring ships is to ascertain, with the utmost possible accuracy, 
 the space in them applicable to the carriage of cargo and passengers. 
 After much complaint of the errors of the then existing law, a com- 
 mission appointed by the government, in 1849, recommended the 
 adoption of a system of external instead of internal measurement. 
 But that plan was found open to serious objections ; and one was 
 adopted — the result of the study and scientific knowledge of Mr. 
 Moorsom, a member of the commission — which was submitted to and 
 approved of by a large number of intelligent shipowners and others 
 interested in, and acquainted with, the subject {b) . 
 
 3. The Registry of British Ships. 
 
 VHio are The following persons are required to register British ships, and 
 
 registrars. are to be deemed registrars for the purposes of the Act : — 
 
 The collector, comptroller, or principal officer of customs, at any 
 port or place of the United Kingdom or the Isle of j\Ian, approved 
 by the Commissioners of Customs for the registry of ships; the 
 principal officers of customs, and the governor, lieutenant-governor, 
 or other person administering the government of the islands of 
 Guernsey or Jersey; the governor, lieutenant-governor, or person 
 administering the government of Malta, Gibraltar, and Heligoland ; 
 the collector of duties, together with the governor, lieutenant- 
 governor, or other person administering the government at any port 
 or place so approved as aforesaid, and at which no Custom-house is 
 established, within the limits of the charter, but not under the govern- 
 ment of the East India Company ; at the ports of Calcutta, Madras, 
 
 (a) 17 & 18 Vict. c. 104, s. 19. As to foreign ships, see 25 & 26 "Vict. 
 
 (b) Sects. 20-30, amended bv 18 & 19 c. 63, s. 60. 
 Vict. c. 91, s. 14 ; 35 & 36 Vict. 'c. 73, s. 3.
 
 3. EEGISTRY OF. 4^ 
 
 and Bombay, the master attendants ; at any other port so approved Chap. 2. 
 as aforesaid* within the limits of the charter and under the govern- 
 raent of the East India Company^ the collector of duties, or any other 
 civil servants of six years^ standing, appointed by any of the govern- 
 ments of the said company; at every other port or place so approved 
 as aforesaid Avithin Her Majesty's dominions abroad, the collector, 
 comptroller, or other principal officer of customs, or of navigation 
 laws, or if there is no such officer, the governor, lieuteuant-governor, 
 or other person administering the government of the possession in 
 which such port or place is situate (c). 
 
 The persons administering the government of British possessions 
 are, as respects any act relating to the registry of a ship, to be con- 
 sidered in all respects as occupying the place of the Commissioners of 
 Customs ; and British consuls, where there is no justice of the peace, 
 may take any declarations required or permitted by the Act to be 
 made, in the presence of a justice of the peace (d). 
 
 The ship shall be surveyed by a j^crson duly appointed under the Certificates, 
 Act, and the surveyor shall grant a certificate specifying the tonnage, Jj,^;|^^|;'["'"''" 
 build, and such other particulars descriptive of the ship's identity "^ '' 
 as may be required by the Board of Trade ; and such certificate shall 
 be delivered before registry to the registrar (e) . 
 
 The property in the ship shall be divided into sixty-four shares (/). 
 Subject to the provisions with respect to joint-owners and owners by 
 transmission, not more than thirty-two persons shall be entitled to be 
 registered at the same time as owners of any one ship ; but this rule 
 is not to affect the beneficial title of any number of persons (//), or 
 of any company represented by or claiming under any registered 
 owner or owners. No person shall be registered as owner of any 
 fractional part or share of a ship, but any number of persons, not 
 exceeding five, may be registered as joint-owners. Joint-owners are 
 to be considered as constituting one person only as regards the rule 
 relating to the number of persons entitled to be registered, but are 
 not to be entitled to dispose in severalty of any interest in any ship 
 or share ; a body corporate may be registered as owner by its cor- 
 porate name {h) . 
 
 A declaration must be made by any person applying (i) to be 
 
 (c) Sect. 30. See 31 & 32 Vict. c. 129, (ff) Sect. 37. See Slater v. Willis, 1 
 32 Vict. c. 11, ss. 6, 7, as to registrars in lieav. 355, decided on a repealed statute. 
 British possessions. As to H. M. declaring (h) Sect. 37. See upon the construction 
 foreign ports ports of registry, see 36 & 37 in these particulars of the former statutes, 
 Vict. c. 85, s. 29. Camden v. Anderson, 5 Term Eep. 709 ; 
 
 (d) Sect. 31. Curtis and Perry, 6 Vesey, 739; Yallop, 
 
 (e) Sect. 36. As to how ships are to be ex parte, 14 Vesey, jun., 60 ; Sotigldon, ex 
 marked before registry, see 36 & 37 Vict parte, and Qribble, ex parte, 17 Vesey, jun., 
 c. 85, s. 3. As to marking deck and load 251 ; Mestaer v. Gillespie, 11 Vesey, 625 ; 
 lines, see 39 & 40 Vict. c. 80, ss. 25, 26, 27, Speldt v. Lechmere, 13 Vesey, 588; Brewster 
 28. V. Clarke, 2 Mer. 75 ; McCalmont v. RunHn, 
 
 if) Sect. 37. Shares in ships registered 2 De G. M. & G. 433 ; Cafo v. Irvinff, 5 De 
 
 under this Act are to be deemed included in G. & S. 210; Follet v. Delani/, 2 ib., 235 
 
 the word " stock" as defined by the Trustee Sughes v. Morris, 2 De G. M. & G. 3 19; 
 
 Act, 1850; 13 & 14 Vict. c. 60; 18 & 19 Duncan v. Tindall, 13 C. B. 258. 
 Vict. c. 91, s. 10. (0 Sect. 38.
 
 44 PEOPERTY IN BEITISH SHIPS — 
 
 Part I. registered as owner of a ship, or any share therein, referring to the 
 
 ship as described in the certificate of the surveyor, and containing a 
 
 statement of his qualification to be an owner of a share in a British 
 ship ; a statement of the time when and place where the ship was 
 built, or if foreign-built, at a place unknown to him, a statement to 
 that effect, and of her foreign name; or if a condemned ship, of the 
 time, place, and court of condemnation ; the name of the master ; 
 a statement of the number of shares in the ship of which the declarant 
 is owner ; and a denial that to the best of his knoAvledge any 
 unqualified person or persons is entitled as owner to any legal or 
 beneficial interest in the ship, or any share therein. 
 
 This declaration is to be made and subscribed in the presence of 
 the registrar, if the declarant reside within five miles of the Custom- 
 house ; but if beyond that distance^ in the presence of any registrar 
 or justice of the peace («). 
 
 If a corporate body is to be registered as owner, the declaration is 
 to be made and subscribed bv its secretary, or appointed public 
 officer, and must contain, in addition to the foregoing particulars, a 
 statement of such circumstances of the constitution and business 
 of such corporate body, as prove it to be qualified to own a British 
 ship (b). 
 
 Upon the first registry of a British-built ship, in addition to the 
 declaration of ownership^ a certificate of the builder (c) must be 
 produced, containing a true account of her denomination, tonnage, 
 time and place of build, for whom built, and of any bill of sale by 
 which the ship or share therein has become vested in the person 
 requiring to be registered as OAvner. In the case of a foreign-built 
 ship, the same particulars^ or a declaration that they cannot be pro- 
 cured j the bill of sale vesting the shij) or share in the person 
 requiring to be registered as owner ; and in the case of a ship con- 
 demned, an official copy of the condemnation {d). 
 Entries in Every registrar shall keep a book, to be called " The Register 
 
 register Book" (e). 
 
 As soon as the foregoing requisites to the due registry of a 
 ship have been complied with, the registrar is to enter in the 
 register book — 
 
 1. The name (/) of the ship, and port to which she belongs. 
 
 2. The details of her tonnage, build, and description, as comprised 
 
 in the certificate of her surveyor. 
 
 (a) Sect. 38. See form in Appendix. tlie Board of Trade, shall have the same 
 
 (b) Sect. 39. See form in Appendix. effect, to all intents and purposes, as the 
 
 (c) See Goss V. Qk('k^o«, 4 Scott's X. E. original register, of which the same is a copy. 
 471. Woods V. Russell, 5 B. & A. 942. 18 & 19 Vict. c. 91, s. 15. 
 
 {d) Sect. 40. (/) See Bell v. Bank- of London, 28 L. J. 
 
 (e) Sect. 32. The copy or transcript of Ex. 116, 3 H. & N. 739. As to a ship's 
 
 the register of any British ship, which is name and as to her name being changed, 
 
 kept bj- the chief registrar of shipping at see 34 & 35 Vict. c. 110, s. 6. As to the 
 
 the Custom-house in London, or by the name in whicli a foreign ship has to bo 
 
 registrar-general of seamen, nnder the direc- registered, sec 36 & 37 Vict. c. 85, s. 5. 
 tion of the Commissioners of Customs, or of
 
 3. EEGISTEY OF. 45 
 
 3. The particulars as to lier origin^ stated in the declaration of Chap. 2. 
 
 ownership. 
 
 4. The names and descriptions of her registered owner, or owners, 
 
 and (if more than one) the proportions in which they arc 
 interested in the ship {y). 
 
 The port or place at which a ship is registered for the time heing 
 shall be considered as her port of registry, or the port to which she 
 belongs (/«) ; and her registry may be transferred from one port to 
 another, upon the application of all i)artics appearing on the register 
 to be interested in the ship (/) ; and upon delivery up of her certi- 
 ficate of registry for that purpose to the registrar of either port, the 
 registrar of the port to which she is transfened, and to which she is 
 thenceforth to be considered to belong, may grant a fresh certificate 
 of registry {k) . 
 
 No notice of any trust, express, implied, or constructive, shall be 
 entered on the register, or receivable by the registrar; and that, 
 subject to any rights and powers appearing by the register book to be 
 vested in any other party, the registered owner of any ship, or share 
 therein, shall have power absolutely to dispose, in manner hereinafter 
 mentioned, of such ship or share, and to give effectual receipts for any 
 money paid or advanced by way of consideration (/; . 
 
 The effect of this provision is to recognize the existence of unre- 
 gistered interests in British ships and registered ownerships in trust, 
 for partnerships and persons not named on the register, thus making 
 the registered owner personally responsible for breach of trust, but 
 without prejudice, as respects bond fide purchasers not implicated in 
 the fraud or breach of trust, to any title derived by them from him. 
 
 The Act also empowers the Court of Chancery (m) in England or Power of 
 Ireland, the Court of Session in Scotland, and any court possessing ^°"^'''" 
 the principal civil jurisdiction in any British possession, upon the 
 summary application of any interested person, ex parte^ or upon ser- 
 vice of notice on any other person, to issue an order prohibiting, for a 
 time to be named in such order, any dealing with such ship or share, 
 to annex thereto any terms or conditions it may think fit, to discharge 
 such order without costs, and generally to act in the premises as the 
 •ustice of the case may require («). 
 
 (g) Sect. 42. As to rcgistenng, the name Ex p. YaJlop, 15 Vescy, 60. FuVett v. 
 
 and address of the ships, managing owner, Delany, 2 De G. & Sm. 235. Cato v. 
 
 &c., see 39 & 40 Vict. c. 80, s. 36. Irving, 21 L. J. Ch. 675. Hughes v. 
 
 (A) Sect. 33. Morris, 21 L. J. Cli. 761. Duncan v. 
 
 (0 Sect. 89. Tindal, 13 C. B. 238. McCalmont v. 
 
 (k) Sect. 90; and see 18 & 19 Vict. c. 91, Rankin, 8 Hare, 1; 2 De G. M. & G. 
 
 s. 12. 403. Armstrong v. Armstrong, 21 Beavan, 
 
 (0 Sect. 43 ; 25 & 26 Vict. c. 63, s. 3. 78. 
 
 By the 8 & 9 Viet. c. 89, ss. 36-38, and {m) Sec Nicholas v. Dracachis, L. R. 
 
 previous Registry Acts, no per.--ons were 1 P. D. 72. 
 
 recognised as owners of British ships, but (») Sect. 65. The Isis, 3 Mar. Law 
 
 owners and mortgagees, and equitable Cases, 52. It was held in the case of the 
 
 interests, except in certain cases were Liverpool Borough Bank v. Turner, 29 
 
 ignored. Curtis v. Perry, 6 Vesey, jun., L. J. Ch. 827, that these sections did 
 
 739; Yallop, ex parte, 15 Vesey, 60; not enable a court of equity to give any 
 
 9th ed., of this work, pp. 61, 62, 66, 72. effect to an unregistered contract to assign
 
 3 rEOrEETY IN ERITISH SITirS — 
 
 Part I. A court may sometimes order a mistake in the register to be 
 rectified (a). 
 
 Certificate to 
 be granted. 
 
 Cbanges to 
 be noticed. 
 
 When new 
 
 certificate 
 
 granted. 
 
 How cer- 
 tificate to 
 be used. 
 
 4. Certificate of Registry. 
 
 Upon tlie completion of the registry of any ship, the registrar is to 
 grant a certificate^ setting forth — the name of the ship and of her 
 port ; her tonnage, build, and description ; the name of her master ; 
 the particulars of her origin, as stated in the declaration of owner- 
 ship ; the names and descriptions of her owners ; and if more than 
 one, the proportions in which they are respectively interested {b) . 
 
 Every change which takes place in the registered ownership of any 
 ship shall forthwith, or on her next return to the port of registry, be 
 endorsed upon her certificate by the registrar ; or, upon advice from 
 him of such change, by the registrar of any other port in which the 
 ship may be ; and the master is required, under a penalty of TOO/., to 
 deliver the certificate of registry to the registrar for this purpose (c) . 
 
 Every change of master must also be endorsed on the certificate, by 
 the presiding officer of any naval court directing such change, or by 
 the registrar or consular officer o£ the port at M'hicli it takes place, 
 and they must forthwith report such change to the Registrar General 
 of Seamen ; and officers of customs at any port may refuse to admit 
 any person to act as master of any British ship, unless his name is 
 inserted or endorsed upon the certificate, as the last appointed master 
 thereof [d]. 
 
 On delivery up of the certificate, or in case of its being mislaid, 
 lost, or destroyed, a ncAV certificate may be granted by the registrar 
 of the ship's port ; and a provisional certificate, to be delivered up 
 to Lim within ten days after the ship's arrival at her port of discharge 
 in the United Kingdom, or other British possession in which she may 
 be registered, may under the same circumstances be granted by the 
 British registrar of any port at which the ship first arrives (e). 
 
 The certificate of registry shall be used only for the lawful navi- 
 gation of the ship, and shall not be subject to detention by reason 
 of any title, lien, charge, or interest, which any person may have or 
 claim in the ship ; and any person, whether interested in the ship or 
 not, who refuses to deliver it up to the person entitled (/) to the 
 
 a ship as security for money due, the for- 
 malities required by the Act not having 
 been complied with. In consequence of this 
 decision the 25 & 26 Vict. c. 63, s. 3, was 
 passed; and since this Act it has been 
 decided by the Court of Exchequer, in the 
 case of an infant purchaser of a ship, 
 against the assignees of the vendor, that 
 the property passed by the bill of sale, 
 though until the vendee's full age the 
 transfer could not be registered, the bank- 
 rupt being a trustee for him in the mean 
 time. Stapleton v. Sat/man, 33 L. J. Ex. 
 170; H. & C. 918. 
 
 (a) Bell V. Bliith, L. R. 4 Ch. 136; 
 Soldeniess v. Lamport, 30 L. J. Ch. 489. 
 
 (t) Sect. 44. As to granting in the colonies 
 terminable certificates of registry subject 
 to conditions, see 31 & 32 Vict. c. 129, 
 ss. 1, 2. 
 
 (e) Sect. 45. 
 
 (d) Sect. 46; 35 & 36 Vict. c. 73, s. 4. 
 
 (e) Sects. 47, 48, 49, 51. 
 
 (/) See the Frances, 2 Dods. Ad. 422, 
 where several owners.
 
 5. TEANSFERS AND TEANSMISSIOXS OF. 47 
 
 custody thereof, for the purpose of suoh navi^-ation, or to any Chap. 2. 
 registrar, officer of customs, or other person entitled to require such 
 delivery, may be brought by "warrant before a justice of the peace, or 
 before any court capable of taking cognizance of such matter, to be 
 examined touching such refusal, and will be liable to a penalty of 
 100/., unless he shows reasonable cause [g] for his refusal, or that 
 the certificate is lost (A) . 
 
 The use by the master or owner of a certificate not legally granted 
 is a misdemeanor, su1)jccting the ship, &c., to ])roccss in the Court of 
 Admiralty, and adjudication of forfeiture, to Her Majesty {i). 
 
 Notice of the loss, capture, or breaking up of any ship, or of her When ship 
 ceasing to be British owned, must immediately, after knowledge of^°**''^'^* 
 the fact, be given l)y the owner of her, or of any share in her, to the 
 registrar, who shall make an entry thereof in the register book ; and 
 the master of every ship so circumstanced shall immediately, if such 
 event occurs in port, or within ten days after arrival in port, deliver 
 her certificate to the registrar of the ship^s port, or to a registrar or 
 British consular officer, to be forwarded to the registrar of the ship's 
 port, under a penalty, on any owner or master making default in 
 obeying the requirements of this section, of 100/. {k). 
 
 A provisional certificate, stating the ship^s name, the time and place Provisional 
 of her purchase, and names of her purchaser and master, and the best ^certificate 
 particulars of her tonnage, build, and description that he is able to port. " 
 obtain, may be granted by the British consular officer to the master 
 of any ship which becomes the property of persons qualified to be 
 British owners at any foreign port, A copy thereof is to be forwarded 
 by such officer to the Registrar-General of Seamen, and it is to 
 remain in force for six months, or until such earlier time as the ship 
 arrives at some port where there is a British registrar (/) . 
 
 5. Transfers and Transmissions. 
 
 A registered ship, or any share therein, when disposed of to persons Bill of sale, 
 qualified to be owners of British ships, must be transferred by bill of 
 sale (m), containing such a description of the ship as maybe sufficient 
 
 {g) Sect. 50. A master of a ship, lying tion of the ship before the expiration of the 
 
 in her port of discharge, but not discharged, agreed time. Wiley v. Craioforcl, 1 E. B. «S: S. 
 
 was held not liable to the penalty enacted 253 and 265 j 29 L. J. Q. B. 241 ; 30 
 
 by this section for refusing to deliver up L. J. Ex. Cli. 213, 319. See Bowen v. 
 
 to the owner anel ship's husband the cer- Fox, 10 B. & C. 41. Cazenore v. Clayton, 
 
 tificate of the ship's registry, on being re- 2 Moody & Rob. 553. Sex v. Walsh, 1 
 
 quired by him so to do, the ship's husband Adol. & El. 481. Bex v. Pixley, 13 East, 
 
 not having dismissed him, or assigned any 91, decided under a repealed statute, 
 
 reason for the demand. Arkle v. Hanzell, (i) Sect. 52. 
 
 8 E. & B. 334; 27 L. J. M. C. 111. {k) Sect. 53. 
 
 (A) Sect. 50; pledge of the certificate by (l) Sect. 54 ; 35 & 36 Vict. c. 73, s. 4; 
 
 the master and owner of a ship for a good see 36 & 37 Vict. c. 85, s. 29. 
 
 consideration, and for an agreed time, has (;«) See form iu Appendix. Transfers or 
 
 been held no answer to an action of trover assignments of any sliip or vessel, or any 
 
 by him against the pledgee on his refusal share thereof, is excepted from the Bills of 
 
 to redeliver it when required for the naviga- Sale Act, 1878.
 
 48 PEOPERTY IN BRITISH SHIPS — 
 
 Part I. to satisfy the registrar of lier identity, and executed by the transferor, 
 in the presence of one or more witnesses (a) . 
 
 The recital in it of the certificate of registry is no longer required. 
 A declaration and denial similar, mutatis mutandis, to those required 
 to be made by original owners must be produced, together with the 
 bill of sale, to the registrar of the ship^s port of registry, who shall 
 thereupon enter the name of the transferee in the book of registry, as 
 owner, and indorse the fact of such entry, and the date and hour 
 thereof on the bill of sale. All bills of sale are to be entered in the 
 order of their production to the registrar {b) . 
 Transmission In case of the transmission of the property or the interest of a mort- 
 by death, &c. gagee [c) in any ship or share, by death, bankruptcy, insolvency, or 
 marriage, or any lawful means other than a formal transfer, the 
 registrar, the fact of such transmission and the circumstances thereof 
 being authenticated to him by the declaration of the person to 
 whom such property shall have been transmitted, and by the proper 
 legal evidence of such transmission, shall enter {d) the name of such 
 person in the register book, as owner of the ship or share therein so 
 transmitted. And the persons, if more than one, and however 
 numerous, to whom such property may be transmitted, shall, as 
 regards the rule relating to the number of registered owners, be con- 
 sidered as one person (e). 
 
 Persons not qualitied to be owners of British ships, and becoming 
 entitled to the property in a ship or share by transmission, may, on 
 application to the Court of Chancery, the Court of Session, or other 
 court of civil jurisdiction in a British possession, obtain an order for 
 the sale of such property by a nominee of such court, whose requisi- 
 tion in respect of any transfer the registrar is required to obey as 
 that of an owner, and for the payment to them of the proceeds (/) . 
 
 If such application is not made within four weeks after the trans- 
 
 (flf) Sect. 55. Chapman v. Collis, 9 C. B. tended as a security only. Ward v. SeeJc, 
 (n. s.) 769; 30 L. J. C. P. 241; Liver- 13 C. B. (x. s.) 668; 32"L. J. C. P. 113. 
 pool Borough Bank v. Turner, 1 Jo. & (c) Sects. 59, 74, 75. For thelaw'res|lect- 
 H. 159; S. C. on appeal, 29 L. J. (n. s.) ing transfers under the repealed statutes, see 
 Ch. 827. Orr v. Dickinson, 28 L. J., Ch. the 9th ed. p. 67, and 3Ioss v. Charnock, 
 516 ; Hooper v Gumm, L. R. 2 Ch. 2 East, 399 ; Moss v. Mills, 6 East, 144 ; 
 290. By the 18 & 19 vict. c. 91, s. 11, Heath \. Hubbard, ^'E^st,\lO; Bloxhamx. 
 it is enacted that the registrar shall not Hubbard, 5 East, 4U7 ; Hubbard v. 
 be required, without the express direction Johnston, 3 Taunt. 177; Hayton v. Jack- 
 of the Commissioners of Her Majesty's son, 8 East,511; Prt?/«w v. il/bxon, 2 M.&S. 
 Customs, to record any bill of sale, mort- 43 ; Richardson v. Campbell, 5 B. & A. 
 gage, or other instrument for the disposal 196 ; Hodgson v. Brown, 2 B. & A. 427 ; 
 or transfer of any ship, share, or interest Thompson \. Smith, \'^h\d.A.^9o ; Dixon v. 
 therein, which is not made in the form or JEwart, 3 Mer. 322 ; Campbell v. Thomp- 
 contains any particulars other than the son, 2 Hare, 143; Ratchford v. Meadotvs, 
 form and particulars prescribed and ap- 3 Esp. 69; Underwood v. Miller, 1 Taunt, 
 proved for the purpose by or in pursuance 387 ; Thompson v. Smith, 1 Madd. 395 ; 
 of 17 & 18 Vict. c. 104. As to the transfer Speldt v. Letchmere, 13 Vesey, jun., 588; 
 of an unfinished vessel incapable of registra- Wilson v. Heather, 5 Taunt. 642 ; Mestaer v. 
 tion, see ex p. Winter, 44 L. J. Q. B. 107. Atkins, 5 Taunt, 381; Bowen v. Fax, 10 
 
 (6) Sects. 56, 57. The owner of a ship B. .S: C. 41. 
 
 who has mortgaged her by a transfer, abso- (d) Sect. 75. 
 
 lute in its form, is not prevented by sect. (e) Sects. 59, 60. 
 
 56 from showing that tlie transfer was in- (/) Sects. 62, 63.
 
 6. MORTGAGES. 49 
 
 mission, or such furtlier time, not exceeding one year, as such court Chap. 2. 
 
 may allow, or is not acceded to by such court, the ship or share so 
 
 transmitted shall be forfeited in the manner described by the Act 
 with respect to interests acquired by unqualified owners in ships using 
 a British flag, and assuming the British character {g). 
 
 Such courts may, upon the summary application of any interested 
 person, by petition or otherwise, and either ex parte or upon service 
 of notice on any other person, issue an order prohibiting, for a time 
 to be named in such order, any dealing with such ship or share ; and 
 every registrar, upon being served with such order, or an official copy 
 thereof, is required to obey the same (//). 
 
 The powers given by these sections to the Court of Chancery, 
 were, before the Judicature Acts, extended to the High Court of 
 Admiralty {i). 
 
 The duty to register a transfer of ownership rests with the Whose duty 
 vendee (A:). The omission of the first purchaser (from the master to register. 
 in a case of necessity justifying a sale by him) to comply with 
 the Registry Act, does not affect the title of a subsequent pur- 
 chaser (/). 
 
 6, Mortgages. 
 
 Mortgages {in) of ships are to be in a prescribed form, and recorded 
 in the order of their production to him by the registrar of the ship's 
 port, who is to make a memorandum on the instrument of mortgage 
 of the date and hour of such record («). 
 
 Mortgages are to have priority according to the date of their record 
 in the register book (o). In the Liverpool Borough Bank v. Turner, 
 1 J. & H. 159; 29 L. J. Ch. 827, it was held that an unregistered 
 equitable mortgage of a ship could not be enforced ; in consequence of 
 this decision, the 25 & 2G Vict. c. G3, s. 3, was passed and such a 
 mortgage is now valid {ante, 45«) . The only effect of not registering 
 a mortgage is to postpone it to a subsequent mortgage or transfer 
 which is registered before it ( p) . 
 
 A mortgagee shall not by reason of his mortgage be deemed to be 
 the owner, nor the mortgagor to have ceased to be the owner of a 
 ship or share, except so far as may be necessary for making it avail- 
 
 (g) Sects. 64, 102, 106. («) Sects. 66, 67. It seems a mortgagee 
 
 (Ji) Sect. 65. is not bound to make any declaration as to 
 
 (i) 24 Vict. c. 10, s. 12. his nationality. 
 
 {k) The Spirit of the Ocean, 34 L. J., (o) Sect. 69. 
 
 Ad. 74; Boy Sony. Gibson, 4: CQ.l^l. (p) Keith v. Burrows, 45 L. J. C. P. 
 
 (/) The Australia,! Swab. 486. 876; 46 L. J. C. P. 452, 801, where the 
 
 (m) Liverpool Borough Bank v. Turner, owner of an unregistered mortgage was 
 
 29 L. J. Ch. 827. See Douglass v. Russell, held entitled to the freight which had been 
 
 4 Sim. 424, 1 Milne & K. 468; Lister \. assigned to a third person after the mort- 
 
 Payne, 11 Sim. 348. See form of mort- gage and before registration. See the Two 
 
 gage in App. No stamp is requisite, s. 9. Ellens, L. R. 3 Ad. 345.
 
 50 
 
 PEOPEBTY IN BEITISH SHIPS. 
 
 Part I. 
 
 Entry of dis- 
 charge of 
 mortgage. 
 
 Power of 
 Court of 
 Almiralty. 
 
 able as a security for liis debt (a) . And he may, unless there be a 
 prior and not concurring mortgagee, in which case he can only act 
 under the order of a court of competent jurisdiction, absolutely dis- 
 pose of the mortgaged interest, and give effectual receipts for the 
 purchase-money (b). 
 
 A registered mortgage shall not be affected by an act of bank- 
 ruptcy committed by the mortgagor after the date of its record, 
 although the ship or share was, at the time of such act, in his order 
 and disposition as reputed owner {c). And where the registered 
 mortgagee of a ship became bankrupt, having previously deposited 
 with a creditor the instrument of mortgage, it was held that the 
 deposit took the ship out of the order and disposition clause, and that 
 the creditor became equitable mortgagee of the ship {d). 
 
 E-egistered mortgages may be transferred, and the transfer is to be 
 entered by the registrar in the register book ; and a memorandum 
 thereof, and of its date and hour, endorsed by him on the instrument 
 of transfer (e). 
 
 The owner of an unfinished ship mortgaged it, and on completion 
 of the vessel caused it to be registered in his name as owner under 
 the Merchant Shipping Act, 1854. On the following day the mort- 
 gagee registered the mortgage. The owner having subsequently 
 become bankrupt — Held, that although there was no mortgage sub- 
 sequent to the registration by the owner, the possession of the vessel 
 was not in the assignees, but in the mortgagee (/) . 
 
 On production of the mortgage deed, with a receipt for the mort- 
 gage money endorsed thereon, the discharge of the mortgage is to be 
 entered by him in the register book, and the estate of the mortgagee 
 to re-vest in the person Avho, but for the mortgage, had been entitled 
 to it (^) . 
 
 Before the Judicature Acts the Court of Admiralty, whether the 
 ship or the proceeds thereof was under arrest of that court or not, 
 had jurisdiction over any claim in respect of any mortgage duly regis- 
 tered under the provisions of the M. S. Act, 1854 {h). 
 
 7. Certificates of Mortgage and Sale. 
 
 Under the 8 & 9 Vict. c. 89, and previous Registry Acts, the sale or 
 mortgage of a British registered ship could only be completed at 
 her port of registry ; an entry on the certificate of registry, which 
 
 (a) This enactment is for the protection 
 of mortgagee against liabilities which 
 miglit have attached to him by reason of 
 his interest in the ship, see ante, 23. 
 
 (b) Sects. 70, 71 ; and see Jlai/ v. Fair- 
 bairn, 2 B. & A. 193 ; Monkhouse v. Sai/, 
 4 B. Moore, 549; decided before these 
 enactments. 
 
 (c) Sect. 72. 
 
 (rf) Lacon v. Liffen, 32 L. J. Ch. 25, 315. 
 See the repealed sections 8 & 9 Vict. c. 89, 
 ss. 45, 46. 
 
 (e) Sect. 73. How transfer may be 
 made, see sect. 66. 
 
 (/) Be/l V. Bank of London, 28 L. J. 
 Ex. 116; 3 H. & N. 739. 
 
 (Sf) Sect. 68. Bell v. Bh/ih, L. K. 4 Ch. 
 136 j the Base, 42 L. J. Ad. 11 ; L. R. 4 
 Ad. 16, where a discharge was entered by 
 mistake. 
 
 (A) 24 Vict. c. 10, s. 11. See the Bose, 
 42 L. J. Ad. 11. See ante, 3, n. (e).
 
 7. CERTIFICATES OF MORTGAGE AXD SALE. 51 
 
 always accompanied tlic ship, being necessary to sueli completion, her Chap. 2. 
 owner had no legal means of empowering the master or an agent to 
 give, at the time and place of a contract for her sale abroad, a 
 complete title to a purchaser. This inconvenience is remedied in the 
 17 & 18 Vict. c. 104, by provisions which enable the owner of a ship 
 to obtain from the registrar, at the ship^s port of registry, certificates 
 or powers of attorney authorizing, within such limits as to time, place, 
 and as to maximum amount of ciiarge, or minimum price of salc^ as 
 lie may think proper, and which must be observed, the person or 
 persons named therein to sell or mortgage his ship (i). When the 
 power is executed by such mortgage, a record thereof is to be endorsd 
 thereon by the registrar or British consular officer of the place at 
 which the mortgage takes place [k) ; and the owner may at any time 
 revoke the certificate, if limited as to place or places, by authorizing 
 the registrar by whom such certificate was granted to give notice to 
 the registrar or consular officer at such place or places that sucli 
 certificate is revoked (/) . 
 
 The Act contains provisions for the due record of such transactions, 
 by ^^'ic registrar granting or revoking the certificate, and by the 
 registrar or consular officer before whom the power conferred by it is 
 exercised, and who receives notice of its revocation (m). 
 
 No certificate can be granted for the sale of less than an entire 
 ship (/i). 
 
 No sale to a purchaser for valuable consideration, and no mortgage 
 bona fide made, shall be impeached by reason of the death of the 
 person by whom the power was given before its exercise, or by reason 
 of his bankruptcy or insolvency, when the certificate contains a 
 specification of the place or places at which, and a limit of time, not 
 exceeding twelve months, within which the power is to be exercised, 
 and the sale or mortgage was made without notice to the purchaser 
 or mortgagee of such bankruptcy or insolvency (o) . 
 
 Certificates of mortgage and sale cannot be granted to authorize the 
 mortgage or sale to be made at any place within the United Kingdom, 
 if the port of registry of the ship be situate in the United Kingdom ; 
 or at any place within the same Britisii possession, if the port of 
 registry is situate within a British possession ; or by any person not 
 named in the certificate Qy) . 
 
 If the ship is sold to a person qualified to be an owner of British 
 ships, the transfer must be by bill of sale; and the ship shall be 
 registered anew on presentation to the registrar required to make such 
 register of the bill of sale, the certificate of sale, and the certificate of 
 registry ; and these certificates, after an endorsement of the fact of such 
 sale upon them, shall be forwarded by him to the registrar of the port 
 appearing on such certificates to be the former port of registry of the 
 ship, who shall thereupon make a memorandum of the sale in his 
 
 (0 Sects. 76 to 83. (») Sect. 81. 
 
 \k) Sect. 80. (o) Sects. 80, 81. 
 
 (0 Sect. 83. 0?) Sects. 78, 79. 
 
 \m) Sect. 83, 
 
 ^ 3
 
 52 PEOPERTI IN BRITISH SHIPS. 
 
 Part I. register Look^ and the registry of the ship shall be considered as closed, 
 except so far as relates to any unsatisfied mortgages or existing certi- 
 ficates of mortgage entered thereon (a) . 
 
 If the ship be sold to a person not qualified to be the owner of a 
 British ship, the bill of sale, certificate of sale, and certificate of 
 registry, are to be produced to some registrar or consular officer, who 
 is to endorse thereon the fact of the sale to such persons, and forward 
 the certificates to the registrar of the port appearing on the certifi- 
 cate of registry to be the port of registry of the ship, who shall there- 
 upon make a memorandum of the sale in his register book ; and 
 the registry of the ship in such book shall be considered as closed, 
 except so far as relates to any unsatisfied mortgages or existing cer- 
 tificates of mortgage entered thereon {b) . 
 
 If these regulations are not complied with, such unqualified person 
 shall be considered by British law as having acquired no title or 
 interest in the ship ; and the person on whose application the certifi- 
 cate is granted, and the person exercising the power, shall be liable to 
 a penalty of 100/. (c) . 
 
 If no sale is made under the certificate, it must be delivered up to 
 the registrar to be cancelled, and power is given to the Commissioners 
 of Customs, in case of its loss or obliteration, to grant a new one, or 
 to direct such entries to be made in the register book and such things 
 done as might have been made or done had the loss or obliteration not 
 taken place {d) . 
 
 As to the form of these certificates, see sect. 79 ; and see forms 
 in App. 
 
 8. Registry Anew, and Transfer of Registry. 
 
 altered. 
 
 Ee-registry Whenever any registered ship is so altered as not to correspond 
 
 M-hen ship y;\\h. her description in the register book, the registrar of the port at 
 which such alteration takes place, or of the next port at which the 
 ship arrives, shall, on application to him, either return the okl certifi- 
 cate of registry, and grant a new one, or endorse and subscribe on the 
 old certificate a memorandum of the alteration, entering in the book 
 of registry, if he be the registrar of the ship^'s port, the particulars of 
 the alteration, or the fact of a new certificate having been granted, or 
 endorsement upon the old one made ; and if he be not the registrar 
 of the ship^s port, reporting to such registrar those particulars and 
 facts, in order to their entry by him in the register book (e) . The 
 registrar of the ship^s port may, instead of registering the alteration, 
 require the ship to be registered anew, and so may the registrar of 
 any other port, who in such case is to grant a provisional certificate, 
 or make a provisional endorsement of the alteration on the certificate, 
 which, within ten days after her arrival in the United Kingdom, or 
 other British possession in which her port of registry is situate, must 
 
 (a) Sect. 81. (rf) Sect. 82. 
 
 {b) Sect. 81. (e) Sect. 84. 
 
 {i) Sect. 81,
 
 9. HEGISTEY — MISCELLANEOUS. 53 
 
 be delivered to the registrar, avIio shall thereupon eause siieh ship to Chap. 2, 
 be registered anew, in the manner required on the first registry of 
 any ship (/). 
 
 On failure of sucb registry anew, or registry of alteration of any 
 ship so altered^ it shall not he deemed duly registered or recognised 
 as a British ship (g). 
 
 The registrar of the ship's port is empowered at the desire of the Re-rog!stry 
 
 owners upon any change of ownership, and on delivery up to him of ^" change of 
 
 .. . • . . owiicrsliiD 
 
 the existing certificate of registry, and compliance with such other 
 
 requisites as he thinks material, to make registry of the ship anew, 
 
 and grant certificate thereof, although such registry may not be 
 
 required by the Act (h). 
 
 With the object, it is presumed, of faeilitatiug the sale of ships, Transfovof 
 a ship's register may be transferred from one port to another ui^on o^^^^poi't to"^ 
 the application, expressed by a declaration made and subscribed another. 
 by them, of all parties appearing on the register to be interested, 
 whether as owners or mortgagees, whose names, together Avith all par- 
 ticulars relating to the ship, are to be transmitted, on such application 
 to him, by the registrar of the ship's port to the registrar of the 
 intended port of registry, who is to enter the same in his book, and 
 grant a fresh certificate of registry, which done, the ship is to be 
 considered as belonging to such last-mentioned port, the name of 
 which is to be substituted on her stern in lieu of the name of the port 
 previously appearing thereon (e) . 
 
 As to re-registration of abandoned ships, &c., sec 36 & 37 Vict. Rc-rogistra- 
 c. 85, s. 6. V°" ','^ f- '"" 
 
 ' cioued ships. 
 
 9. Registry — Miscellaneous. 
 
 Under this head arc classed in the statute a variety of regulations 
 respecting the inspection of registry books — the application of fees — • 
 the indemnities and duties of registrars in exceptional cases — provision 
 for cases of infancy and incapacity — the grant of passes for un- 
 registered ships in special circumstances — the liability to penalties of 
 persons interested otherwise than as mortgagees in ships, though not 
 registered as owners— the oiFence of forging or fraudulently altering 
 any book or document, or entries in and endorsements on them — tlie 
 admission in evidence of documents, and of examined or certified 
 copies of them — and the national character of ships — most of which 
 are now for the first time enacted [k) . 
 
 Among these the more noticeable are the following : — 
 Any declaration or thing required by the Act to be made or done By ^^hom 
 by a person interested in a ship, which he is incapable by reason of J^'j';l'|jJ'^"/g^ 
 infancy, lunacy, or other inability, from making or doing, may be 
 made or done by his guardian or committee ; or, if there be no guar- 
 
 (/) Sects. 83, 86. (0 Sect. 90. 
 
 {g) Sect. 87. {k) Sects. 92—108. 
 
 \h) Sect. 88.
 
 54 
 
 PROPERTY IN BRITISH SHIPS. 
 
 Part I. 
 
 Who Hal.le to 
 penalties. 
 
 As to gi'ant- 
 ing a clear- 
 ance or 
 transire. 
 
 improperly 
 tisine British 
 flagr&c. 
 
 Ship? tvatllug 
 within E. I. 
 Co.'s charter. 
 
 dian or committee^ by any person appointed by any court having 
 jurisdiction in respect of the property of incapable persons (a) . 
 
 Persons beneficially interested in ships otherwise than as mort- 
 gagees^ although not registered as owners, are declared liable, sepa- 
 rately or jointly with the registered owners, to all pecuniary penalties 
 enforced by this Act, or any other Act, on the owners of ships or 
 shares therein {b). 
 
 No officer of customs shall grant a clearance or transire for any 
 ship until the master has declared to such officer the name of the 
 nation to which he claims that she belongs, and such officer shall 
 thereupon inscribe such name on the clearance or transire {c). 
 
 If any person uses the British flag, and assumes the British national 
 character on board any ship, owned in whole or in part by any per- 
 sons not entitled by law to own British ships, for the purpose of 
 making such ship appear to be a British ship, unless such assumption 
 has been made to escape capture by an enemy, or by a foreign ship of 
 war in exercise of some belligerent right, such ship shall be forfeited 
 to Her Majesty {d) . 
 
 The doing or permitting of anything, or the can'ying or permitting 
 to be carried any papers or documents, with intent to conceal the 
 British character of a ship from persons entitled by British law to 
 inquire into the same, or the fraudulent assumption of a foreign 
 character, with intent to deceive any such person, will subject the 
 ship to forfeiture, and render the master, if privy to the commission 
 of such an offence, guilty of a misdemeanor. 
 
 The like forfeiture attaches to the acquisition, by any unqualified 
 person (except in the case of transmitted interests), of any interest, 
 legal or beneficial, in a ship using a British flag, and assuming the 
 British character (e). 
 
 Whenever it is declared by this Act that a ship belonging to any 
 person or body corporate, qualified, according to this Act, to be the 
 owner of British ships, shall not be recognized as a British ship, such 
 ship shall not be entitled to any benefits, privileges, advantages, or 
 protection, usually enjoyed by British ships, and shall not be entitled 
 to use the British flag, or assume the British national character ; but 
 so far as regards the payment of dues, the liability to fines and penal- 
 ties, and the punishment of oflences committed on board such ship, or 
 by any persons belonging to her, such ship shall be dealt with in all 
 respects as if she were a recognised British ship (/) , 
 
 By section 108 nothing in the Act is to repeal or afi'ect the 3 & 4 
 Vict. c. 56, an Act to regulate the trade of ships built and trading 
 within the limits of the East India Company's charter. Sections I to 
 7 of this Act are repealed as to all Her Majesty's dominions, by the 
 Statute Law Revision Act, 1874, No. 2. 
 
 (a) Sect. 99. 
 (6) Sect. 100. 
 
 (c) Sect. 102. 
 
 (d) Sect. 103j 39 & 40 Vict. c. 80,s.34. 
 
 (e) Sect. 103. 
 
 (/) Sect. 106; the Laura, 3 M. P. C. 
 (n. s.) 181 ; R. V. Seberff, L. R. 1 C. C. E. 
 26J..
 
 li. EVIDENCE OF DECLAEATION. 56 
 
 Chap. 2. 
 10. Fishery Boats, Lighthouse Boats, and Pleasure Yachts, &^'C. 
 
 The third part of the M. S. Act, 1854, is, by the 25 & 26 Vict. 
 c. 63, s. 13 (the M. S. Act Amendment Act, 1864-), to apply to 
 fishing boats, the boats of lighthouse boards, and pleasure yachts, with 
 certain exceptions. 
 
 By 39 & 40 Vict. c. 36 (the Customs Consolidation Act), s. 175, Painting 
 "the owner of every ship belonging wholly or in part to ^.ny of |^il|",^^°"„ °^ 
 Her Majesty's subjects, shall paint or cause to be painted upon the a vessel/&c. 
 outside of the stern of every boat belonging to such ship the name of 
 such ship, and the port or place to -which she belongs, and the master's 
 name withinside the transom, in white or yellow lioman letters, not 
 less than two inches in length, on a black ground, on pain of the 
 forfeiture of every such boat not so marked, ■wherever the same shall 
 be found." 
 
 By section 176, '' the owner of every vessel or boat, whether decked, 
 partially decked, or open, not being of the burden of one hundred 
 tons, and not belonging to any ship, shall paint or cause to be painted 
 upon the outside of the stern of such boat, in white or yellow Roman 
 letters, of not less than two inches in length, on a black ground, the 
 name of the owner of the boat, and the port or place to which she 
 belongs, on pain of the forfeiture of such boat not so marked, wherever 
 the same shall be found.'' 
 
 11. Evidence of Declarations and of Books of Registry. 
 
 Eveiy register of, or declaration made in respect of, any British 
 ship, may be proved in any court of justice, or before any person 
 having by law, or by consent of parties, authority to receive evidence, 
 either by the production of the original, or by an examined copy 
 thereof; or by a copy thereof, purporting to be certified under the 
 hand of the registrar, or other person having the charge of the 
 original, which certified copies he is required to furnish to any person 
 applying at a reasonable time for the same ; and every such register, or 
 copy of a register, and also every certificate of registry of any British 
 ship, purporting to be signed by the registrar, or other proper officers, 
 shall be received in evidence as prima facie proof of all the matters 
 contained or recited in such register, when the register or such copy is 
 produced, and of all matters contained in or endorsed on such certifi- 
 cate of registry, and purporting to be authenticated by the signature 
 of a registrar, when such certificate is produced {y) . 
 
 The w'ording of this section, it will be observed, differs materially 
 from that of the forty-third section of the repealed Act 8 & 9 Vict. 
 0. 89, by which copies of documents, on being proved to be such, were 
 made evidence '^ as fully and to all intents and purposes as such 
 
 {ff) Sect. 107 5 as to copy of register books in London being evidence, see 18 & 19 
 Vict. c. 91, c. 15.
 
 56 tKOPEKTY IN BRITISH SHIPS. 
 
 Part I original, if produced, could or might legally be admitted or received 
 
 in evidence " [a) . 
 
 Wherever the title to the ship comes strictly and properly into 
 question, no claim can be received in opposition to the modes of con- 
 veyance required by the statutes [b) . But there are cases in which 
 the possession of property, and acts of ownership exercised upon it, 
 furnish presumptive evidence of a title to it ; and some also, in which 
 the possession alone is sufficient to maintain an action, although the 
 legal title may be outstanding in another. And it has been held that 
 a British ship does not, as to these points, differ from any other sort 
 of property (c). 
 
 13. Offence of Forging or Fraudulently altering Documents, and of 
 making False Declarations. 
 
 Any person who forges or assists in forging or fraudulently alter- 
 ing any register book, certificate of surveyor, certificate of registry, 
 declaration of ownership, bill of sale, instrument of mortgage, cer- 
 tificate of mortgage or sale, or any entry or endorsement required by 
 the second part of the M. S. Act, 1854, is guilty of felony. Any person 
 who wilfully makes a false declaration touching the qualification of him- 
 self, or of others, to own British ships, or shares therein, is guilty of 
 a misdemeanor, and the ship or share of the declarant, to the extent 
 of his interest, and the interest of any parties on behalf of whom 
 such false declaration is made (unless it is shown to have been 
 made without their authority), is forfeited to H. M. [d). And any 
 person who, in any declaration made in the presence of or produced 
 to any registrar of shipping, in pursuance of the second part of the 
 17 & 18 Vict. c. 104, or in any documents or other e-vidence produced 
 to such registrars, wilfully makes or assists in making, or procures 
 to be made, any false statement concerning the title to, or the owner- 
 ship of, or the interests existing in any ship, or any share in any 
 ship, or utters, produces, or makes use of any declaration or document 
 containing any such false statement, knowing it to be false, is guilty 
 of a misdemeanor (e) . 
 
 {a) The following cases were decided (c) Tlie Xostra Signom de Jos Belores, 
 
 tinder the repealed Act : — Stokes v. Came 1 Dodson, 290 ; Eobertson v. French, 4 
 
 and others, 2 Camp. Eep. at N. P. 339; East, 130; Sheriff \. Cadell, 2 Esp. 617; 
 
 Frazer v. Hopkins, 2 Taunt. 5; Smith v. Ameri/ v. Rogers, 1 Esp. 207; Thomas v. 
 
 Fiige, 3 Camp. 456 ; Heusse v. Metiers, ib. Foyle, 5 Esp. K P. C. 88 ; Hickman v. Car- 
 
 475; Sands v. Thomas, 5 M. & S. 244; stairs, 5 B. & Adol. 654; Sutton v. Buck, 
 
 Teed v. Martin, 4 Camp. 90; Tinkler v. 2 Taunt. 302, an action against a wrong- 
 
 Walpole, 14 East, 226 ; Cooper v. SoutJi, doer. 
 
 4 Taunt. 802 ; Flower v. Young, 3 Camp. (rf) Sect. 103. 
 
 240 ; Macli-er v. Humble, 16 East, 169 ; {e) And see, as to the punishment of mis- 
 
 Firie V. Anderson, 4 Taunt. 652. demeanors under this Act and the applica- 
 
 (b) Follett V. JJelany, 2 De Gex & Sm. tion of penalties of the Act, Part X. of the 
 
 235; and see M'Calmont v. Eankin, 21 Act, sect. 517, e^ se«. 
 L. T. 1 ; 8 Hare 1.
 
 OF PxVRT-OWNERS. 
 
 CHAPTER III. 
 
 OF PART-OWNERS OF SHIPS ; AND HEREIN, 
 
 Sect. 1. Of their legal relation to each other as Tenants in Common, or as Partners 
 and Joint- Tenants, p. 57. 
 
 2. Rejulat ions for the enjoyment of their Common Properly in case of Disagree- 
 
 ment — by the Laws of Foreign States, p. 58. 
 
 3. Jurisdiction exercised for thai object by the High Court of Admiralty in 
 
 England, p. 59. 
 
 4. Tower of one Tart-owner to bind the others by his Contracts. Office and 
 
 Authority of Ship's Husband, p. 61. 
 
 5. Adjustment of the Interest of Tart-owners on Bankruptcy of one of them, 
 
 p. 64. 
 
 6. Ship's Accounts, how adjusted between Tart-owners, p. 68. 
 
 7. Interest of Tart-owners as to Strangers. Who should sue or be sued, p. 69. 
 
 8. Extent of Liability of each Tart-owner for Supplies and Repairs, p. 70. 
 
 1. Of their Legal relations to each other as Tenants in Common, or as 
 Partners and Joint-Tenants. 
 
 A SHIP is usually conveyed [to different persons, in several and 
 distinct shares, and consequently the several part-owners thereby 
 become tenants in common with each other of their respective 
 shares ; each having a distinct, although undivided interest in the 
 whole ; and upon the death of any one, his share goes to his own 
 personal representatives, and does not accrue to the others by sur- 
 vivorship (/). It is proposed to consider the nature of their interest,] 
 
 (/) [This is the most usual practice. If the Treatise it was stated, without qualifi- 
 
 the interests are not severed and distin- cation, that " The several part-owners are 
 
 guished in this way, but the entire ship is tenants in common with each otlier ofth^ir 
 
 granted to a number of persons generally, respectice shares." In the fourth edition, 
 
 it is apprehended they become joint-tenants i)repared by the author, the text was altered 
 
 at law ; and that tlie i-ule jus accrescendi and the note in question first appeared. 
 
 inter mercatores locum non habet, wliich No change was made in either by the noble 
 
 is applicable to a ship, is to be enforcetl only and learned editor of tlie fifth edition. See 
 
 in a court of equity.] As to the superior upon this subject Kent's Com. on Commer- 
 
 courts of law and equity now being united, cial and Maritime Law, Edinb. edition, 
 
 see Preface to this cd. p. 32; also Smith's Mercantile Law, p. 190; 
 
 Judge Stort (Amer. edit. p. 68), says Lukex. Gibson,! A\iv.Eq. 220; Jeffreys \. 
 
 that this note was not wTitten by the author, Small, 1 Yern. 217; 3 P. Wms. 158; and 
 
 but by the editor of the fifth edition of this the judgments of the American judges, 4 
 
 work"; but the learned judge is mistaken: Johns. Ch. R. 522; 20 Johns. R. 611, 615, 
 
 there is no doubt that the doctrine in the ^os^, 62; Buckley \. Barber, QEx.lQi ; -dwi. 
 
 note caiTies with it the weight of the late Story on Partnership, tit. Part-owners. — 
 
 Chief Justice's authority. 3Ir. Justice Slvee. 
 
 In the text of the three first editions of
 
 68 ,0F PAET-OWNEES. 
 
 Part I, \_ first, -with relation to each other; and secondly, with relation to 
 strangers.] 
 
 2. Regulations for the Erijoytnent of their Common ProjJerty in case of 
 Disagreement — by the Laws of Foreign States. 
 
 [First, A personal chattel, vested in several distinct proprietors, 
 cannot possibly be enjoyed advantageously by all, without a common 
 consent and agreement among them. To regulate their enjoyment in 
 case of disagreement is one of the hardest tasks of legislation ; and it 
 is not without wisdom that the law of England in general declines 
 to interfere in their disputes, leaving it to themselves either to enjoy 
 their common property by agreement, or to suffer it to remain 
 unen joyed, or perish by their dissension, as the best method of 
 forcing them to a common consent for their common benefit. But 
 of ships, '' which are built to .plough the sea, and not to lie by the 
 walls,''' commercial nations consider the actual employment as a 
 matter, not merely of private advantage to their owners, but of 
 public benefit to the state, and therefore have laid down certain 
 positive rules in order to favour this employment, and to prevent the 
 obstinacy of some of the part-owners from condemning the ship to 
 rot in idleness. It sometimes happens that several persons become 
 part-owners in a ship, under a fixed compact and settled agreement 
 among them for the employment of it, or that by common consent 
 they delegate the management of their common concern to one of 
 them, who, by a very intelligible figure of speech, is called the 
 husbav^d of the ship. Nothing is then left for the law of the state 
 but to enforce the compact and agreement of the parties, according 
 to its own mode of administering justice in analogous cases. It is 
 only when the enjoyment of the property has not been thus settled 
 by the parties that it becomes necessary to inquire what mode the 
 law of the country has prescribed for the regulation of it. Some 
 foreign writers (a) on maritime laAV have laid it down as a rule, that 
 if a ship is in need of repair, and one part-owner is willing to repair 
 it, and another unwilling, he who is willing may repair it at their 
 common expense ; and if the other will not pay his quota within four 
 months, he shall lose his share in the ship ; and they found their 
 doctrine upon a passage in the Digest {b), in which the same opinion 
 is delivered with regard to the repairs of a house. But I do not find 
 this rule adopted in practice in any country, and in case of the 
 poverty of the party it would be extremely cruel. 
 
 The ordinances of Oleron and Wisbuy are silent on this subject 
 of disagreement among part-owners as to the employment of a ship.] 
 
 (a) [Straccha de Nav. Pars. 2, Num. 8. very gi-avely tells us that ships often want 
 
 The author cites two others, who had repairs, aud as gi-avely cites the Digest to 
 
 ■WTitten before him, and is as usual cited in prove his proposition.] 
 his turn by Eoccus and others, who have (b) Dig. 17j 2, 52, 10; 
 
 written after him. In the same passage he
 
 3. EEGIJLATIONS FOE ENJOYME.XT OF PKOPEETY, &C. '50 
 
 [By the ordinance of the Ilause Towns {c), if the owners disagree as Chap. 3. 
 to the freighting of the ship, the most voices shall carry it, and yet 
 the master may take money on bottomry for those who will not 
 contribute their part to the outfit. The French ordinance ((/) directs, 
 that in all cases which concern the common interest of the owners, 
 the opinion of the majority in value shall be followed [e). The 
 ordinance of Rotlerdam (/) gives power to a majority possessed of 
 above half the ship to let it out on freight, and to bind all the part- 
 owners thereby, and to raise money for the outfit, cither by borrow- 
 ing it on bottomry, or by disbursing for the shares of the other 
 owners, who appear unwilling to contribute after due notice. And 
 the same ordinance (g) even authorizes the owners of above half the 
 ship to sell it for the general account.] 
 
 3. Jarisdictioii exercised for that object by the Court of 
 Admiralty in England. 
 
 Before the Judicature Acts, by 24 Vict. c. 10, s. 8, the Court of r< ^^ -^r "f 
 Admiralty had jurisdiction to decide all questions between the ^^"^I'j.^it^. 
 co-owners or any of them, touching the ownership, employment, and 
 earnings of any ship registered at any port in England or Wales, 
 or any sliare thereof, to settle all accounts between the parties in 
 relation thereto, and to direct the ship or any share thereof to be 
 sold, or make such order in the premises as to it might seem fit ih). 
 
 [The law of this country appears to possess an important advantage ^'°"".'^f_ 
 over all the ordinances that have been cited ; because, while it '^^'^'' ""''■ 
 authorizes the majority (i) in value to employ the ship "upon any pro- 
 bable design,^^ it takes care to secure the interest of the dissentient 
 minority from being lost in the employment of which they dis- 
 approve. And for this purpose it has been the practice of the Court 
 of Admiralty, from very remote times, to take a stipulation from 
 those who desire to send the ship on a voyage, in a sum equal to the] 
 
 (c) [Art. 59. I have followed the trans- (/) Art. 172, 2 Magciis, 108. See also 
 
 latioa given in Malync. The words as given on this point Weskett on Insurance, tit. 
 
 in the Us et Coutunies de la iler arc, " Le Eottouiry, sect?. 3 & 4. 
 
 2}lus de trois Vemportera su.r les aiitres," {</) Art. 171, 2 Mageus, 108. 
 
 which Cleirac interprets to mean three more {h) See former cases as to the jurisdic- 
 
 on one side than on the other.] tion of the Court of Admiralty, Justice v. 
 
 {d) Liv. 2, tit. 8. Des Proprietaires, art. Brown, 2 Hardres, 473 ; Kniyhl v. Berry, 
 
 5. See the Commentary of Valin ; see also 1 Wm. & M. Carth. 26 ; Comb. 109; Eep. 
 
 Pardessus, Cours de Droit Commercial, temp. Holt, 647; 1 Show. 13; King v. 
 
 art. 621. Berrti, 3 Salk. 23; Lambert v. Acretree, 1 
 
 (e) This is still the law in that country. Ld. Raym. 223 ; Blacket v. Anslei/, 2 Ld. 
 
 Ell general on pent dire que le ckoix Eaym. 235 ; 3Iore v. Rowboiham, 6 Mod. 
 
 du capitaine et des gens de I' equipage les 162; De Grave v. Hedges 2 Ld. Raym. 
 
 engagemens anvers eux, la redection des 1285 ; Dimmock v. Chandler, 2 Stra. 890 ; 
 
 instructions a suivre pendant la traversee, Fitz. 197; Ousten v. Hebden,l Wills. 101. 
 
 la location, le radoub et Varmement da (/) See Godolphin, in the introduction to 
 
 navire sont des operations que la majorite his view of the Admiralty jurisdiction. 
 
 pent decider malgre la minorite. — Cours de Rook 2, c. 1, s. 2. And see Cleirac's 
 
 Droit Commercial, art. 621. — Mr. Justice note on the 59tli article of the Hanseatic 
 
 Shee, Ordinance.
 
 60 OF PART-OWNERS. 
 
 Part I. [value of the shares of those AA^ho disapprove of the adventure,, either to 
 
 bring back and restore to them the ship^ or to pay them the value 
 
 of their shares [a] . "When this is done, the dissentient part-owners 
 bear no portion of the expenses of the outfit, and are not entitled to 
 a share in the profits of the undertaking ; but the ship sails wholly 
 at the charge and risk, and for the profit of the others {b) . This 
 security may be taken upon a warrant obtained by the minority to 
 arrest the ship, and it is incumbent on the minority to have recourse 
 to such proceedings as the best means of protecting their interest; 
 or, if they forbear to do so, at all events they should expressly notify 
 •*^heir dissent to the others, and, if possible, to the merchants also who 
 freight the ship; for it has been decided (c), that one part-owner 
 cannot recover damages against another by an action at law upon a 
 charge of fraudulently and deceitfully sending the ship to foreign 
 parts, where she was lost. And it has also been decided in the Court 
 of Chancery, that one part-owner cannot have redress in equity against 
 another for the loss of a ship sent to sea without his assent (d) . These 
 decisions are consonant to the general rule of law, that where one 
 tenant in common does not destroy the common property, but only 
 takes it out of the possession of another, and carries it away, no 
 action lies against him ; but if he destroys the common property, he 
 is liable to be sued by his companion. And in a case tried before 
 King, C. J., wherein it appeared that one part-owner had forcibly taken 
 a ship out of the possession of another, secreted it, and changed its 
 name ; and that it afterwards came into the possession of a third 
 person, Avho sent it to Antigua, where it was sunk and lost ; the chief 
 justice left it to the juiy to say, under all the circumstances of the 
 case, whether it was not a destruction of the ship by the means 
 of the defendant ; and they finding it to be so, the plaintiff" recovered 
 the value of his share. The Court of Common Pleas afterwards 
 approved of the direction of the chief justice (e). If a part-owner 
 expressly notify his dissent, the Court of Chancery will not compel 
 him to contribute to a loss (/). If the minority happen to have 
 possession of the ship and refuse to employ it, the majority also] 
 
 (a) Form o£ such a secm-ity, Appendix. was argued at the chambers of the chief 
 The Apollo, 1 Hagg. 311 ; and see post, justice, before hiru and Tracey and Dormer, 
 c. 3. s. 3. justices, and a new trial ordered by consent. 
 
 (b) Anon. 2 Chan. Ca. 86, Trin. T. 32 The trial mentioned in the text was tlie 
 Car. 2 ; and by Holt, C. J., in Boson v. second trial. A third trial was moved for 
 Sandford, Carth. 63. and refused. A full note of this case is 
 
 (c) Graves v. Saincer, Sir T. Raym. 15 ; now printed in 4 East, 121.] 
 
 1 Keb. 38 ; and 1 Lev. 29. (/) [^Ilorn v. Gilpin, Amb. 255. In this 
 (rf) Strelley v. Winson, 1 Yern. 297 ; case it was said, that the gi-ound of deci- 
 Skin. 230. siou mentioned in Vernon's Report of 
 (e) [Barnardistoa v. Chapman and an- Strelley v. Winson, viz., that recourse 
 other 1 Geo. 1, Sir Peter King's Cases, should have been had to proceedings in the 
 MS. The cause was twice tried. At the Admiralty, is misstated there, and that tlie 
 first trial, a verdict was found for the plain- real ground of decision was, that the part- 
 tifE, subject to a case, which stated only the owner who complained had not expressly 
 title of the parties, and that the defendants dissented ; and it appears by Skinner's 
 by force took the ship out of the plaintiff's Report, that there had been no express pro- 
 possession, and carried it away. The case hibition of the voyage on his part.]
 
 4. rOWER OF SHIPS HUSBAXD. 61 
 
 [may by a similar warrant obtain possession of it, and send it to sea, Chap. 3, 
 upon giving such security.] 
 
 Formerly though the Court of Admiralty Avas open to applications 
 by part-owners, to restrain the sailing of ships without their consent, 
 the amount of the respective shares must have been apparent ; for if 
 the amount of them Avas a subject of dispute, the Court of Chancery 
 would interfere, and, by injunction, restrain the sailing of the ship 
 till the amount of the shares, for which security Avas to be given, Avas 
 ascertained {g). Eut this application to the Court of Chancery must 
 have been made as expeditiously as possible (//). 
 
 [We have seen that the Court of Admiralty cannot, in any case, 
 compel any of the part-owners to sell their interest {i). The French 
 ordinance {k) prohibits one part-owner of a ship from forcing his 
 companion to a sale (which, by tlie French laAA's, one tenant in com- 
 mon might in general do), except in case of equality of opinions, 
 upon the undertaking of a voyage. But a part-owner may by our 
 law dispose of his interest to another person at any time ; a rule 
 better adapted to the present state of commerce than that (/) Avliich 
 formerly prevailed among some of the nations of the continent, and 
 which did not permit the sale of a ship until after a possession of 
 three or more years, or at least not till after the performance of one 
 voyage at the charge and'risk of the part-OAvners (m) . The old rule 
 appears to have been framed Avitli a vicAV to the interest of the master, 
 "who in former times was the principal OAvner, and was the person 
 who, Avith the pecuniary assistance of the other OAvners, generally 
 caused the ship to be built, in the expectation of being employed in 
 the command : an expectation that might be defeated, if the others 
 could sell their shares to strangers, Avho, acquiring a majority of 
 interest, might appoint a friend of their own {n)^. 
 
 In one case it Avas held, that a part-owner who had arrested the 
 ship by process out of the Admiralty Court, and obtained security 
 for his share, Avas bound to pay his proportion of the expense of the 
 repairs and outfit incurved Avith his assent previous to the arrest, but 
 not entitled to any share of the profits of the A^oyage (o) . 
 
 4. Power of one Part-Owner to bind another by Ms Contract. Ofice 
 and Authority of Ships Husband. 
 
 A part-owner of a ship has no general authority to bind his co- Power of one 
 
 owners for repairs ; whether such authority has been expressly or part-owner to 
 bind another, 
 
 (g) Haly v. Goodson, 2 Meriv. 77; 2 employment. See the notes to the fifth 
 
 Dod. 420. See an/e,3,n.{e); and as to the American ed. of this work, by Perkins. — 
 
 present jurisdiction of the Court of Admi- Mr. Justice Shee. See now, as to the power of 
 
 rally, see the Preface to this ed. the Court of Admiralty to direct a sale, &c., 
 
 (A) Christie v. Crair;, 2 Meriv. 137. But 2-i Vict. c. 10, s. 8, ante, 59. 
 see Castelli v. Cook, 7 Hare, 89; and (^) Liv. 2, tit. 8: Des Proprietaires, ai-t.6. 
 
 Darby v. Baines, 9 Hare, 369. (/) Valin on the French Ordinance, tom. 
 
 (i) \^Ouston V. Hebden, 1 Wills. 101.] prem. 583; Loccennius de Jure Marit. lib. 
 
 It is otherwise in the United States, where 3, c. 5, s. 3; Consolato, c. 54. 
 the Courts of Admiralty, founding them- (m) Molloy, book 2, c. 1, s. 3. 
 
 selves upon the general maritime law, have (») Consolato, c. 47. 
 
 asserted their right to decree a sale on a dis- (o) Davis v. Johnstone, 4 Sim. 539, 
 
 agreement of part-owners of a ship as to its CasfeUi v. Cook, 7 Hare, 93,
 
 62 OF PART-OWNEES. 
 
 impliedly given to Lim is a question of fact^ and a part-owner, to 
 Part. I. exonerate himself from the liabilities for repairs ordered by another 
 part-owner, is not bound to give express notice that he will not be 
 liable for them (a). 
 
 [One part-owner cannot, by ordering an insurance of the ship, 
 Avithout authority from another, charge the other with any part of 
 the premium, unless the other afterwards assent to the insurance,] 
 because this is no part of the joint concern; a share in a ship being 
 the distinct property of each individual part-owner, Avhose own affair 
 it is to protect it by insurance (A). [It is otherwise if they be in 
 partnership together,] and the order be given in the name or on 
 account of the firm {c). [So one part-owner, although he be the 
 husband, cannot, as such, pledge the other to the expenses of a 
 law-suit {(1)1 ; and the admission of a partner as to a subject not 
 of co-partnership, but of conjoint owner-ship in a vessel, is not bind- 
 ing on his co-partner (e). 
 Ship's hus- It is usual for the several part-owners to appoint a person, 
 
 frequently one of their own number, to be the manager of their joint 
 concern, their general agent in the use and employment of the vessel, 
 under the name of ship's husband (/). His duties and powers as 
 such are often defined and limited by the terms of a special agree- 
 ment for that purpose between him and his employers or co-owners. 
 Where no such agreement has been made, he is to exercise an 
 impia'tial judgment in the employment of tradesmen and the appoint- 
 ment of officers ; and be careful that his choice in the selection of a 
 master be not biassed by any private pecuniary transaction [ff] . He 
 
 band. 
 
 (a) Bi'odie v. Howard, 17 C. B. 109; arrest in the Admiralty Court, in a suit 
 
 25 L. J. C. P. 57 ; and see Whitwell v. for collision, in order to enable her to 
 
 Perrin, 4 C. B. (n.s.) 412. But in an action prosecute her voyage, and earn freight, 
 
 by a ship's husband against a part-owner Barker v. Highley, 32 L. J. C. P. 270; 15 
 
 for contribution to the amount of works, C. B. (n.s.) 27. 
 
 being alterations and not necessary repairs, (el Jagoers v. Bennings, 1 Stark. 14. 
 
 done to a ship under a contract, to the Part-ownership is but a tenancy in common, 
 
 making of which the defendant had and a person who has only a part interest iu 
 
 assented, it was held that he could not a ship is generally a part-owner, and not a 
 
 revoke the authority gi\en by him after joint tenant or partner. As part-owner, he 
 
 it had been acted upon, and that the onus of has only a disposing power over his own 
 
 showing that he had done so before the interest in a ship. When a p- rson is to be 
 
 contract entered into was upon him. Chap- considered as a part-owner, or as a partner 
 
 pell V. Bray, 6 H. & X. 45 ; 30 L. J. in a ship, depends upon circumstances. 
 
 Ex. 24. The former is the general relation between 
 
 (6) Ogle V. Wrangham, coram Ke^ttox, shipowners ; the latter the exception, and 
 
 C. J., Guildhall Sittings, H. T. 1790 ; requires to be especially shown. — Kent's 
 
 French v. Backhouse, 5 Burr, 2727 ; and Com. on Mercantile and Commercial Law, 
 
 Bell V. Humphries, 2 Starkie, 345 ; Chap- Edin. edit. p. 150 See also Wright v. 
 
 pell V. Bray, 30 L. J., Ex. 24. Hunter, 1 East's Rep. 20. Holderness v. 
 
 (c) Hooper v. Lushy, 4 Campb. 67. See Shackels, 8 B. &. Cress. 12. And see CoUyer 
 
 also Eohinson v. Gleadoio, 2 Bing. N. C. on Partnership, " on Part-o\\niers of Ships." 
 
 156; Eoberfs v. Ogilby, 9 Price, 269; (/) See, as to the authority of ship's bus- 
 
 Hatselt V. Griffith, 2 C. '& M. 679. band, Mr. Justice Stoet's Commentaries 
 
 (rf) Campbell v. Stein, 6 Dow. 135. A on the Law of Agency, 
 
 maiiaging owner of a vessel has power to {g) Card v. Hope, 2 Barn. & Cress. 661. 
 
 pledge the credit of his co-owner by pi'O- Green v. Briggs, 6 Hare, 408. Darby v, 
 
 cxiring bail to release the vessel from an Baines, 9 Hare, 372.
 
 4. POWER OF SHIPS HUSBAND. 63 
 
 is to see that the ship is properly repaired, equipped, and manned — Chap. 3. 
 
 to procure freights or charter-parties — to preserve the ship's papers — 
 
 to make the necessarj^ entries — adjust freight and averages, — disburse 
 and receive moneys, and keep and make up the accounts as bet\yeen 
 all parties interested {h) . His acts for these purposes are considered 
 to be the acts of all the part-owners, who are liable on all contracts 
 entered into by him for the conduct of their common concern — the 
 employment of the ship. Yet, where a tradesman brought an action 
 for cordage against the owners of a ship, and it was proved that he 
 had taken a bill of the managing owner for the amount, which was 
 dishonoured, and renewed, and dishonoured again, Lord Ellen- 
 borough (/) said, "If the plaintiff, dealing with the managing owner, 
 has adopted him, he has discharged the others. If he has adjusted 
 accounts with him on that footing, the other defendants are entitled 
 to the benefit of it.^' 
 
 A part-owner has been held liable for repairs ordered by a co-owner 
 to whom lie had sold one moiety of his interest in the ship, and 
 demised the other moiety, appointing him ship's husband and general 
 manager; although the repairs were ordered during the continuance 
 of the demise {k) . 
 
 It is the business of a ship's husband to obtain from each of the 
 part-owners his contribution to the charges of the outfit, repairs, and 
 other necessaries ; and if he advance for one part-owner his proportion 
 of such contribution, he may sue him separately for the amount (/). 
 He has a lien also, in his character of ship's husband, and agent for 
 the owners, for expenses disbursed by him as such, or by the owners 
 for each individual part-owner, on the share of such part-owner, in 
 the produce of the joint adventure (m) . 
 
 (h) Si»if V. Brittain, 4 Barn. & Adol. repairs, and the necessary engagements) 
 
 375 ; Coulthnrst v. Sweet, L. R. 1, C. P. which will bind the owners, althouirh he 
 
 649. See Kent's Commentaries, Edin. ed. may have received money wherewith to pay 
 
 147; Story's Commentaries on Agency, them. 3. He may receive the freight ; but 
 
 p. 32. " The ship's husband," says is not entitled to take bills instead of it, 
 
 Beawes (Lex Mercatoria, p. 47), "is, as giving up the lien by which it is secured, 
 
 it were, a steward on land to the owner 4. He has no power to insure for the o\nier's 
 
 of the ship, as the officer bearing that name interest without special authority. 5. He 
 
 is on board, when the ship is at sea." "The cannot give authority to a law agent that 
 
 ship's husband," says Mr Bell (Principles will bind his owners fur expenses of a law 
 
 of the Law of Scotland, 44'J), " is the agent suit. 6. He cannot delegate his authority." 
 
 or commissioner for the owners. He may See also 1 Bell's Commentaries, p. 411. He 
 
 be a part-owner or a stranger. His powers cannot cancel a charter pai-ty. Thomas v. 
 
 are by mandate or written commission by Lewis, 48 L. J. Ex. 7; see Union v. Trask, 
 
 the owners, or by verbal appointment; the 29 L. J. Ch. 337. 
 
 latter chiefly where he is also part-owner. (/) Reedy. White, 5 Esp. \\. 122: see 
 
 His duties are — 1. To arrange everything Griffiths v. Hicks, 15 L. T. 349. 
 for the outfit and repair of the ship — {k) Preston v. Tamplin, 2 H. & X. 363, 
 
 stores, repairs, furnishings; to enter into 684; 21 L. J. Ex. 346. 
 contracts of affreightment ; to superintend (0 £«/«« v.5Hu7/i, 7 Bing.709. Broton 
 
 the papers of the ship. 2. His powers do v. Tapsco, 6 M. & W. 119. 
 not extend to the borrowing of money ; but {m) Holderness v. Shackels, 8 B. & C, 
 
 he may grant bills for furnishings, stores, 612.
 
 64 OF PART OWNERS. 
 
 Part I. 
 
 5. Adjustment of the Interests of Part-Owners on the Bankruptcy 
 
 of one of them. 
 
 [The interest of part-owners in the profit and loss of an adven- 
 ture undertaken by their mutual consent, is not affected by the 
 bankruptcy of one of them taking place after the commencemep+ of 
 the voyage, although he has not paid his full share of the outfit. i:i 
 such a case, if the other part-owners have in that character paid the 
 expense of the outfit, or made themselves responsible for it, they will 
 have a right to deduct his share thereof from the portion of the profits 
 of the voyage to be paid to his assignees (a)] . 
 
 In the case of Hotderness v. ShacJcels, wliich was trover for twenty 
 tons of whale oil, the plaintiffs were the assignees of Foxton, a bank- 
 rupt, who, jointly with one Locking, and the defendant, was part- 
 owner of the ship Jane, a vessel engaged in the whale fishery. The 
 usual mode of managing the cargo w^as, that on the arrival of the vessel 
 at her homeward port, the blubber was deposited in a warehouse 
 rented by the part-owners, and the oil produced from it was then put 
 into casks, each owner^s share being weighed out and placed separately 
 in the warehouse, in casks marked with his initials. After the divi- 
 sion, the practice w as for the Avarehouseman to deliver to the order of 
 each part-owner his share of the oil, unless notice was given by the 
 ship^s husband that the part-owner^s share of the disbursements had 
 not been paid. In that case the warehouseman used to detain the 
 oil till the ship's husband's demand had been satisfied. After the 
 division, and after a portion of Foxton's share of the oil had been 
 delivered to him, he became bankrupt, and the warehouseman had 
 orders from the ship's husband not to deliver to A. the remaining oil, 
 as his share of the disbursements of the ship had not been paid. Mr. 
 Justice Bayley said : — '^ Where there is a joint adventure which 
 produces certain goods, the proper course is, first to deduct all the 
 expenses which have been incurred in order to obtain those goods, 
 and then to divide the residue among the shareholders, in proportion 
 to the shares to which each is entitled respectively. In this case, the 
 joint adventurers obtained a quantity of oil in bulk. No partner, or 
 representative of a partner, had a right to his aliquot part of that oil 
 until he had paid his share of the expense of procuring it. That will 
 be the case whether the shareholder has become bankrupt, or con- 
 tinues solvent. If he continues solvent, he may pay his share of the 
 outfit and of the expense. If he does not pay it in money, the other 
 part-owners have a right to see that an aliquot part of what has been 
 gained in the adventure be retained, so as to pay that share of the 
 outfit which he ought to pay. In this case, Foxton became bank- 
 rupt ', and having become bankrupt, if he could have paid in money 
 his share of the outfit, there would have been twenty-nine tons of oil 
 coming to him. He could not pay, and therefore, as it seems to me, 
 
 («) Soldeniess v. ShackeJs, ante, -p. 63 ; sec Qreen v. Briggs, 6 Hare, 395 ; Boyd v. 
 Mangels 3 Exch. 387.
 
 5. ADJUSTMENT OF INTEEESTS ON BANKRUrXOY. G5 
 
 the justice and law of tlie case is_, that his share of the expense Chap. 3. 
 
 should be paid out of the twenty-nine tons, and that until he has 
 
 paid his share of the expense, he cannot claim that quantity/^ 
 
 [In a case, where the outfit had been conducted by a person 
 appointed to manage the concern as purser or ship's husband, in 
 pursuance of an agreement made by three others at the time of 
 their becoming owners of the ship, and this person settled the 
 accounts with them, and took from one of them, who afterwards 
 became a bankrupt, promissory notes payable at a future day, for a 
 part of his share of the expense, it was determined that the assignees 
 of the bankrupt were entitled to receive his full share of the profits, 
 and tliat the ship's husband must take a dividend under the commis- 
 sion for the amount of the notes. In this case the husband had, after 
 liis appointment, acquired an interest in the sliip, by purchasing a 
 part of the share of one of the other part-owners ; but his right as a 
 part-OAvner does not appear to have been insisted upon ; and indeed 
 he had made the disbursements, and managed the concern, not in 
 the character of a part-owner, but of an agent. After the bankruptcy 
 had happened, the other two part-owners paid two-thirds of the 
 amount of the bankrupt's notes to the ship's husband, and agreed 
 with him to consider the bankrupt as interested only in the pro- 
 portion which the money he liad paid bore to the whole cost and 
 outfit. But this transaction was held not to affect the question, nor 
 alter the right or interest of the bankrupt, or of the assignees, upon 
 whom they had devolved {b). 
 
 In this ease, which was sent from the Court of Chancery for de- 
 termination at law, the question Avas made and decided Avith respect 
 as well to the value of the bankrupt's share in the ship itself, as to 
 the profits of the adventure without distinction. 
 
 In the report of another case, before Lord Chancellor Hard- 
 wiCKE (c), it is stated, that several persons having entered into a con- 
 tract with one T. Hall, empowering him to build and fit out a ship 
 at their joint expense, for the service of the East India Company, 
 and he having died insolvent, without paying his portion of the 
 expense, the others, who of course remained answerable to the trades-] 
 
 (b) Smith V. De Silva, Cowp. 469. See to him, and i e had not executed any bill of 
 Soldeniess v. Shackels, 8 B. & C. G12. sale to them for their respective shares. The 
 Lindsay v. Gibbs, 28 L. J., Ch. G92. defendant by his answer admitted, that he 
 Ouion V. Trask, 29 L. J. 337. 1 De G. was a trustee for the plaintiffs as to the 
 F. & J. 373; Boyd v. Mangles, 3 Ex. 387. eleven-sixteenths, but submitted that they 
 
 (c) \_Doddington v. Hallett, 1 Ves. 497. were not liable to the tradesmen, because 
 Upon reference to the Register Book of the the debts were contracted by the intestate ; 
 Court, anno 1749, folio 625, it appears that and further insisted that they had no specific 
 the plaintiffs had covenanted with T. Hall, lien on the shares, which, not being sub- 
 the intestate, to take certain shares sub- scribed for, belonged to him. The Lord 
 
 'scribed for by them, and which amounted Chancellor decreed a reference to the Master 
 
 together to eleven- sixteenths, of a ship to be to take the accounts, and directed allowance 
 
 built and fitted out under his direction for to be made to the plaintiffs for all such sums 
 
 the service of the East India Company ; that as they had paid or were liable to pay to the 
 
 the ship was accordingly built and equipped, tradesmen or workmen, for building, equip- 
 
 and was then at sea, and the builder had piug, or victualling the ship, or for seamen's 
 
 executed a general bill of sale of the whole wages, and declared that if any balance]
 
 66 ' OF PART OWNERS — 
 
 Part I. [men for the whole, filed a bill against his administrator, praying 
 "~~ that they might have a specific lien upon Avhat should be due to him 
 for his share to this extent, and that the administrator might not 
 apply this as part of his general assets for the benefit of all the 
 creditors ; and that his lordship determined that they had a specific 
 lien on his share for what they had paid or were liable to pay to the 
 tradesmen for building and equipping the ship. The building and 
 equipment had been managed by the deceased. In the course of his 
 judgment, the Lord Chancellor, adverting to one part of the argument 
 urged on the part of the administrator, is reported to have said, 
 " The defendant's counsel have been forced to resort to the case of an 
 assignment of a share for a valuable consideration ; which not being 
 the case, I will not now determine, because that is to be governed 
 by the course of trade. If it stood on the head of general equity, I 
 should be of opinion, that if such a purchaser had notice of the 
 partnership, he would be subject to it, and should not doubt granting 
 an injunction to that action of trover ; if he had not notice it is 
 another thing, and a strong case for that purchaser ; because he would 
 have gained the legal interest ; but if by the course of trade it is 
 otherwise, that will prevail and govern in this case, and the court 
 will never extend a partnership of this kind to affect purchasers 
 beyond what the course of trade will do, which is to govern in mercan- 
 tile matters." 
 
 This usage, or course of trade, I apprehend to be to charge the 
 assignee or purchaser in account for the outfit and other expenses 
 incurred in respect of the voyage, of which he is entitled, in con- 
 ' sequence of his purchase, to share the profits, which can be only the 
 voyage in prosecution at the time of the purchase, but not to carry 
 back the charge as against him to the expense of any antecedent 
 adventure, from which he can derive no profit [a] . 
 
 It will be observed that one of these cases arose out of a bank- 
 ruptcy, and the other out of an insolvent intestacy. In each of them, 
 therefore, the Lord Chancellor would have a general jurisdiction over 
 the efiects, and the principles of equitable jurisdiction might be] 
 
 [should appear due to them, thei/ had a Boddington v. Hailett. But his decree was 
 
 specific lien on the remaining shares for overturned by the Court of Appeals (in 20 
 
 such balance, and those shares were to be John E. 611), where the majority of the 
 
 sold before the Master, and the money ap- judges who delivertd their opinions seemed 
 
 plied, in the first place, to the discharge of inclined to support the opinion of Lord 
 
 such balance.] Haedwicke ; and in the case before them, 
 
 («) It appears from a note by Judge which was somewhat special in its circum- 
 
 Stoey, in his edition of this Treatise, p. 79, stances, where the parties were part-owners, 
 
 that there has been some diflcrence of and engaged in a partnership adventure, in 
 
 opinion in the American Courts respecting which the ship was eventually sold, and one 
 
 the authojnty of the case of Doddington v. of the part-owners got possession of the 
 
 Sallett, and of the two cases ex parte proceeds, the court held him entitled to re- 
 
 Yoitng, and ex parte Harrison, decided by tain for outfits, but not for a general 
 
 Lord Eldon. balance due on former voyages and adven- 
 
 Judge Stoey says, "In Mumford v. tures." 
 
 Kicholl (4 John. Ch. R. 522), Chancellor Cpon these decisions, the following ob- 
 
 Kent acted upon the authority of the case servations are made by Chancellor Kent : — 
 
 ex parte Young, in opposition to the case of " In JSlchoU v. Mumford, it was held that
 
 5. ADJUSTMENT OP INTEEESTS ON BANKRUrTCi'. 67 
 
 [applied. It seems to have been considevecl^ tliat part-owners might Chap. 3. 
 
 have a lien on each othei-'s shares of a ship, as partners in trade have " 
 
 on each other's shares of their merchandise ; but I do not find this 
 point to have been ever decided^ and there is a material difference 
 between the two cases. Partners are at law joint-tenants of their 
 merchandise — one may dispose of the whole property ; but part- 
 owners are tenants in common of a ship. One cannot sell the share 
 of another. And if this general lien exist, it must prevail against a 
 purchaser, even without notice ; which docs not seem consistent with 
 the nature of the interest of a tenant in common. It is true, indeed, 
 that as long as the ship continues to be employed by the same 
 persons, no one of tlieni can be entitled to partake of the profits until 
 all that is due in respect to the part he holds in the ship has been 
 discharged; l)ut as one part-owner cannot compel another to sell the 
 ship, there does not appear to be any mode by which he can enforce 
 against the other's share of the ship in specie the payment of his part 
 of the expenses {b) .] 
 
 In a later case, ex parte Young {c), the petitioners were part-owners 
 of a ship called the Grenville Bay, with other persons, two of whom, 
 William Lushington, senior and junior, became bankrupts on the 
 6th of January, 181.2. Tlie bankrupts were also the managing 
 owners, and in that character were indebted to the petitioners 
 and the other owners 278/. on balance of accounts, for the freight 
 and earnings of the ship, after taking credit for the outfit, amounting 
 to 2,234/., which sum the bankrupts had not paid; and after the 
 bankruptcy, the other owners were obliged to pay it. The assignees 
 sold the share of the bankrupts for 780/. The petition prayed an 
 application of the proceeds of the share of the bankrupts in the 
 ship, freight, &e , towards satisfaction of the sums so due to the 
 petitioners and the other owners. Lord Chancellor Eldon observed — 
 " The difficulty in this case arises upon the decision of Doddinyton v. 
 Halleit, by Lord Hardwicice, which is directly in point. That 
 case is questioned by Mr. Abbott, who doubts what would be done 
 
 ship-owners were tenants in common, and as well as other chattels, might be held in 
 were not to be considered as partners, nor strict partnership with all the control in 
 liable each in solido, nor entitled in the each partner incident to comniei'cial part- 
 settlement of acconnts on the principle of nerships. We find it also stated by Lord 
 partnership. The doctrine of Lord Haed- Tenterdex, that in the c:ise of the death 
 WICKE on this, in Doddington v. HciUett, of any part-owner, after an injury received, 
 was considered to be overruled by the the right of action survives in general to 
 modern decisions in Chancery (5 Vesey, 575; the surviving part-owners, who must after- 
 2 Vesey & B. 242 ; 2 Rose, 76, 78), and by wards pay to the personal representatives of 
 the universal understanding in tlie com- the deceased the value of his share. This 
 mercial world. But when the case of rule as to the remedy gives to the owner- 
 Nicholl v. Mumjord was reviewed in the ship of vessels one of the essential attri- 
 Court of Error, the doctrine of Lord Hard- butes of a partnership." — Commentaries on 
 WICKE was considered by the majority of Commercial and Maritime Law, Edinburgh 
 the judges to be the better doctrine; and edition, p. 36. — Mr. Justice Shee. 
 no doubt there mat/ he a special partner- (jb) Third ed. of this work, see post, 68, 
 ship in a ship as well as in the cargo in n. (a) : and see now 24 Vict. c. 10, s. 8, ante, 
 regard to a particular voyage or ad centure. 59. 
 
 It was assumed by the Court, in Lamb v. (c) 2 Yes, & B. Rep. 242. 
 
 Durrani (12 Mass. Rep. 54), that vessels, 
 
 f2
 
 08 OF PART OWNERS — 
 
 Parti. wdtli it at this day, and I adopt the doubt {a). The case, which is 
 given by INIr. Abbott from the register book, is a clear decision by 
 Lord Habdavicke, that part-owners of a ship, being tenants in 
 comnson, and not joint-tenants, have a right, notwithstanding, to con- 
 sider that as a chattel, used in partnership, and liable as partnership 
 eflPects, to pay all debts whatever to which any of them are liable on 
 account of the ship. His opinion went the length that the tenant 
 in common had a right to a sale. There is great difficulty upon that 
 case ; and the inclination of my judgment is against it ; but it 
 would be a very strong act for me, by an order in bankruptcy, 
 from which there is no appeal, to reverse a decree made by Lord 
 Hardwicke in a cause. From a manuscript note, I know it was 
 his most solemn and deliberate opinion, after great consideration, 
 that the contrary could not be maintained ; and there is no decision 
 in equity contradicting that.^^ Upon a subsequent day, Lord Eldon 
 said, that after much consideration he must decide against the case 
 of Doddington v. Hallett ; and soon afterwards a petition, presented 
 under similar ch'cumstances in another bankruptcy, was also dis- 
 missed {b). 
 
 6. Ship's Accounts, how adjusted between Part-owners, 
 
 The ordinary remedy for part-owners to obtain an adjustment of 
 the ship^s accounts among themselves is by action in the chancery 
 division of the High Court of Justice (c) . [But in a case where several 
 part-owners entered into a written agreement, whereby they and each 
 and every of them did agree to and with the others and each and 
 every of the others, that the ship should proceed on a certain voyage, 
 and be under the exclusive management and control of one of the 
 parties as husband thereof ; and that, after the ship^s return, a full 
 account should be made out of the ship and her concerns, and the net 
 profits be divided according to the proportions ; it was held that each 
 individual party to the agreement might maintain an action at law 
 upon it against him who had acted as the husband, for not making 
 out an account and dividing the profits within a reasonable time after 
 the ship's return [d).'] 
 
 Thus, where two part-owners of a ship, who were also partners as 
 to the proceeds of a voyage, settled and adjusted their accounts as to 
 
 _ (o) Referring to the author's observa- mere fact of part-ownership does not make 
 tlons in the preceding pages, which are the part-owners of a ship partners, but they 
 taken from the third edition of this Treatise, may be jointly ^interested in her use and 
 and which, as well as many other passages employment ; and the law as to the earn- 
 in this chapter, must now be understood as ings of a ship, whether as freight or cargo, 
 subject to the qualification in the first sen- follows the general law of partnership. See 
 tenceof it. — Mr. Justice Shee. Green \. Briggs, 6 Hare, .S95; Helms v. 
 (J) Harrison, ex parte, 2 Rose, 76. Smith, 7 Bins. 709; Holderness v. SkacJceh, 
 (c) Mqfatv. Farqv.harson, 2 Bvo.C.C. 8 B. & C. 612; Bodll v. Hammond, 6 
 338. B. & C. 149 ; Wag v. Milestone. 5 M. & W. 
 {d) [OiDstonx. OjrZe, 13 East, 538.] The 21.
 
 7. THEIR INTERESTS AS REGARDS STRANGERS. 69 
 
 that voyage^ and one of tliem^ in consideration of a larger share of Chap. 3. 
 
 profit than he was otherwise entitled to^ agreed to pay the broker's 
 
 hill, it was held that the broker^'s bill became his own individual debt, 
 which might be recovered from him by the other partners^ by whom 
 it had been paid to the broker (e). So also, where, before the 
 Judicature Acts, the master of a vessel covenanted with the several 
 part-owners to pay certain moneys to them, and theii' several executors, 
 &c., at a certain banker^s, and in such parts and proportions as were 
 set against their several and respective names, it was decided that cacli 
 covenantee might sue severally in respect of his several interest, and 
 that they could not maintain a joint action (/). 
 
 [It is said to have been decided in the Court of Chancery, in a 
 case where the majority of the part-owners had settled an account 
 of the profits of a voyage, that the others were concluded thereby ; 
 and the court would not entertain a suit by one of them to unravel 
 the accounts (g) . I presume this to have been a settlement with the 
 master,] 
 
 7. As to the Interest oj Part-owners tvith regard to Strangers. Who 
 should sue or be sued. 
 
 [The several part-owners of a shij) make in law but one owner, and 
 in case of any injury done to their ship by the wrong or negligence of 
 a stranger, they ought regularly to join in one action at law for the 
 recovery of damages, which are afterwards to be divided among them- 
 selves according to their respective interests ; for otherwise the party 
 who had committed the wrong might be unnecessarily harassed with 
 the expense of several suits to obtain the same end, which might be as 
 well effected in one.] But this rule of law is made for the case of 
 the wrongdoer ; and therefore, before the Judicature Acts which 
 abolished pleas in abatement, the law required that he should 
 avail himself of it at the very beginning of the cause, by pleading in 
 abatement of a suit brought by one part-owner, that there were others 
 living who ought to be parties to it. If one single part-owner sue he 
 will recover damages for the injury proportionate to his share in the 
 ship [h). 
 
 In the ease, however, of an action of contract for the freight of 
 goods conveyed in a general ship, all the part-owners ought to 
 
 (e) TTUson v. Cutting, 10 Bing. 436. accouuts, aucl imposes a fine upon those who 
 
 (/) Sen-ante v. James^ 10 B. & C. 410. do not attend the first time in person or by 
 
 See Eadenhvrst v. Bates, 3 Bing. 463; agent; and at the second time anthorizcs 
 
 Helme v. Smith, ante, p. 68. As to joinder of the others to make a final settlement with^ 
 
 plaintiffs since the Judicature Acts, see J. out them.] 
 
 Act, 1875: 0. 16, r. 1; Arch. Pract. by {h) Sandsy. C7iilds,Sa\k.S2. Addtsonv, 
 
 Prentice, p. 197. Ocerend, 6 Terra Rep. 766; see BocJc- 
 
 (ff) {^Sobinson r. 77iO})ipso)7,iycr\\.46o. tcra!/ v. BicA-enson, Comh. 366; PJiiUips \. 
 
 The Hanseatic Ordinance of 1614 requires Claggett, 10 M. & W. 102. Sedgioorth v. 
 
 the master at his return home to summon Overend, 7 T. R. 279. As to jiarties to 
 
 all the part-owners to receive and pass his actions, see Arch, by Prentice, 197.
 
 70 OF PAET-OWNERS — 
 
 Part I. join (a). And although the share of each part-owner he his separate 
 property, yet where A., B., and C. were owners of a vessel, and B. and C. 
 employed D. to sell it for them, which he did, and paid over their 
 proportion of the purchase-money to B. and C, hut refused to pay 
 A. his proportion o£ the proceeds of the sale of the vessel, and A. 
 alone sued him for the amount, it was held he could not recover : 
 for here was a joint-contract, and persons having separate interests 
 in a ship may jointly agree to authorize another to sell the entirety 
 for them (b). But if several part-owners allow one of their number 
 to deal with their joint property as his own, and he lend the proceeds 
 of it and receive credit for them in account in his own name, although 
 the property was joint, his contract with the borrower may have been 
 separate, and they must show that it was not so, if they would sue 
 upon it (c) . So where the master was part-OAvner, and had in fact the 
 ship let to him, it was held that he might sue in his own name for a 
 breach by the consignor of his contract in the bill of lading {d). 
 
 On the other hand, if an action is to be brought against the part- 
 owmers upon any contract relating to the ship, regularly such action 
 should be brought against all jointly, yet if all are not sued, the 
 plaintiff will recover his whole demand, and the defendants must after- 
 wards call upon the other for contribution (e) . 
 
 If a ship is held by its owners as partners, all are jointly liable on 
 the contract oi one of them made as their agent in the name of and 
 for the purposes of the partnership. It is assumed in that case that 
 a partner acts as agent for his co-partners; otherwise as respects 
 part-owners, each of whom is bound only by his own act or the act of 
 his agent, duly authorized by him. Between part-owners agency 
 must be proved ; between partners it is implied by law (/). 
 
 8. Extent of Liability of each Part'Oivner for Siqiplies 
 and Repairs. 
 
 [If a tradesman who has repaired a ship take from some of the 
 part-owners sums equivalent to their shares, they still remain respon-] 
 
 (a) There is a loose note in 3 Keble, either on a special count foi' wrongfully 
 
 444, Stanley v. Hales, of a dictum of Chief making it payable to himself, or as money 
 
 Justice Hale at IS'isi Prius, to the contrary had and received by him to the plaintiffs' 
 
 of what is here advanced in tlie text ; but use. 
 
 the reporter adds, that the cause went off to (e) Sims v. Bond, 5 B. & Ad. 389. Ex 
 
 a reference. See Ex parte Christie, lOVes. parte Grihhle, Deacon and Chitty, 339. 
 
 jun, 105. {d) Catothronx. ±rickett, 15 C. B. (x.s.) 
 
 {b) Hatsell v. Griffith, 2 C. & M. fi79. 754. 
 
 ^cei\\so Brown Y.Bradford, ^MoQ-kB-oh. (e) 'Govett v. Eadnidge, 3 East, 62. 
 
 p. 413, and see JFalshe v. Provan, 8 Exch. Powell v. Layton, 2 New Eep. 365. Max v. 
 
 843, in which it was held that a ship-agent, Poherfs, 2 New Bep. 450, 12 East, 89. 
 
 who, having been directed by the ship's Weal v. King, 12 East. 452. 
 
 husband and part-owner of a ship to charter (/) Brodie v. Soivard, 17 C. B. 109. 
 
 her, did so, making the freight payable to 3Iitckeson v. Oliver, 5 E. & B. 419. Helme v. 
 
 himself, could not retain the freight received Smith, 7 Bing. 709. Yotaig v. Brander, 8 
 
 by him under the charter-party against a debt East, 10. Briggs \. WilHnson, 7 B. & C, 
 
 due to him by the ship's husband ; and that 33. Bx parte Harrison, 2 Kose, 76. Frost y. 
 
 the plaintiffs, who were the owners of the Oliver, per Eele, J., 2 E. & B. 301. 
 ship, were entitled, to recover the amount
 
 8. LIABILITY FOE SUPPLIES AXD EEPAIPvS. 71 
 
 [sible for tlie residue, if not paid by the others, unless at tlie time of Chap. 3. 
 the payment the tradesman specially agree to discharge them from all 
 further demand, upon some good consideration inducing him so to doj 
 such as payment before the expiration of the usual credit, or release 
 them by deed (y), which no prudent man will do without some very 
 strong inducement. In this respect the law of England differs from 
 the civil law, Avhich gives an action against any one part-owner upon 
 a contract made by the master to the full extent of the demand, but 
 in the case of contracts made by the part-owners themselves, holds each 
 to be chargeable only in proportion to his own share of the ship (/<) . 
 By the law of Holland^ the several part-owners are, in all cases, charge- 
 able only according to their respective interests in the ship (i) .] 
 
 (ff) Pas mo re v. Boufjield, 1 St.irkie, being the amount of their proportion of the 
 
 296. Bac. Ab. Merchant, D. The obser- said ship's repairs lately done at Plymouth, 
 
 vations in the text must now be under- we having settled with the other owners 
 
 stood to apply where the part-owners arc respectively, John Teed & Co." Messrs. 
 
 jointly liable for the repairs — as to which Baring & Co. knew that the proportions 
 
 see ante, p. 62. \_Teed v. Baring, before had been adjusted, but not paid. Sec 
 
 Lord ELLENDonouGii, Ch. J., at Guild- Fitch v. Sutton, 5 East, 230.] Wright v. 
 
 hall, 1806. The receipt given ' by one of Hunter. 1 East, 20. 
 
 the plaintiffs was as follows: " Received, (A) Dig. 14, 1, 1, 25 and 11, 1, 2, 3, 
 
 30th of May, 180i, from INIessrs. B. M. & and 4. 
 
 Co., one-fourth owner of the ship William, (/) Vinnius in Peckium, p. 155. 
 
 Captain James Thompson, the sum of 450/.,
 
 Part II. 
 
 PAET THE SECOND 
 
 OF THE BOARD OF TRADE («) AND NAVAL COURTS. 
 
 Sect. 1. Its General Fundlons in relation to the Ilercantile Marine, p. 72. 
 
 2. Local Marine Boards, p. 74. 
 
 3. Duties of 3Iercantile Marine Offices, p. 75. 
 
 4. Naval Courts^ p. 75. 
 
 1. Of the Board of Trade ; its General Functions in relation to the 
 Mercantile Marine, 
 
 The general superintenclence of matters relating to merchant sliips 
 and seamen is committed, by tlie 1? & 18 Vict. c. 104, to the Board 
 of Trade, which is authorized to carry into execution the provisions 
 of that Act, and of all other acts relating to merchant ships and 
 seamen, and not relating to the revenue [b). 
 
 It is empowered from time to time to prepare and sanction forms 
 of the various books, instruments, and papers required by the Act 
 (with the exception of those relative to the registry of ships, of which 
 it prescribes the forms), and to make such alterations therein as it 
 deems requisite. These forms are to be sealed with the seal of the 
 board, or marked with some other distinguishing mark ; they are to 
 be supplied at the custom-houses and mercantile marine offices (c) of 
 the United Kingdom free of charge, or at moderate prices to be fixed 
 by the board, which may license persons to print and sell them ; and 
 no such book, instrument^ or paper, unless made in such form, is 
 admissible in evidence in any civil proceeding on the part of any 
 owner or master of any ship [d). 
 
 All documents whatever, purporting to be sealed by the board 
 or signed by its secretaries, and all certificates issued by the board 
 and sealed with its seal^ or signed by an officer of its marine depart- 
 
 («) The Board of Trade sluill meau the under the Merchant Shippmg Acts in the 
 
 Lords of the Committee of Privy Council name of any of their officers, sec 36 & 37 
 
 appointed for the consideration of matters A^ict. c. 85, s. 31. As to the Board of Trade 
 
 relating to trade and foreign plantations authorizing persons to hold enquiries for 
 
 sect. 2. They may be described in all Acts them, see 37 & 38 Vict. c. 40, s. 2, 
 
 of parliament, contracts, &c., as "the Board (i) Sect. 6. 
 
 of Trade," 24 & 25 Vict. c. 47, s. 63. As to (c) 25 & 26 Vict. c. 63, 8. 15. 
 
 the Board of Trade taking proceedings (d) Sect. 8.
 
 1. BOAED OF TRADE. fS 
 
 meiit (e), arc to be received in evidence and taken without further Part II. 
 proof, unless the contrary be shown, for such documents as they 
 purport to be (/) . 
 
 All consular officers, officers of customs abroad, local marine 
 boards, and superintendents of mercantile marine offices (g), are to 
 make such reports and returns, and all superintendents of mercantile 
 marine offices are to produce to the board such official log-books and 
 other documents delivered to them in pursuance of this Act, as the 
 board may require {h). 
 
 Every officer of the board {i), if he has reason to suspect that the 
 provisions of the laws relating to merchant seameu and navigation 
 have not been complied with, may require the owner, master, or any 
 of the crew of any British ship, to produce any official log-books, 
 lists of persons on board his ship, or other documents relating to 
 such crew, and take copies of them. He may muster the crew of 
 any ship, and summon the master to appear and give any explana- 
 tion concerning such ship or her crew, or such log-books and 
 documents. 
 
 Any person who refuses to obey such requisition, or impedes such 
 master, or refuses or misleads any person authorized to demand such 
 explanation, is liable to a penalty of 20/. {k) . 
 
 The board is also empowered from time to time to appoint in- 
 spectors to report to it on the nature and causes of any accident or 
 damages which any ship has or is alleged to have sustained ; whether 
 the provisions of the Act, or regulations made under them, have 
 been observed ; and whether the hull and machinery of any steam- 
 ship are in good and sufficient order {I) . 
 
 The inspectors so appointed are empowered to go on board and 
 inspect every part of such ship, and everything contained in or con- 
 nected with it, to which the Act applies ; and any premises which he 
 may think requisite to enter, for the purpose of the report he is to 
 make. He may summon before him all persons whom he may think 
 fit to examine, require answers or returns to any inquiries he thinks 
 fit to make, and enforce the production of all books, papers, or docu- 
 ments, which he considers important for his purpose. He may 
 administer oaths, or require every person examined before him to 
 make and subscribe a declaration of the truth of the statements 
 made by him in his examination (m) . Witnesses summoned before 
 him are to be allowed their expenses ; and all persons who, after 
 tender of such expenses, refuse to attend, or to make any answer, or 
 give any return, or produce any documents, or make or subscribe 
 any declarations which such inspector is empowered to require, is 
 
 (e Sect. 7. and superintoiidciits of mercantile inariue 
 
 (/ Sect. 7. offices. 
 
 (ff) 25 & 26 Vict. c. 63, s. 15. (k) Sect. 13. 
 
 (h) Sect. 12. (l) Sect. 14. As to investigating sbiii- 
 
 (j) This authority is also given to officers ping casaulitics, see 39 & 40 Vict. c. 80, 
 
 of tlie Queen's sliips on full pay, British s. 29, et seq., 42 & 43 Vict. c. 72. 
 consular officers, the registrar-general of (w) .Sect. 15. 
 
 seamen and his assistant, officers of customs.
 
 74 2. LOCAL MARINE BOARDS. 
 
 Part II. liable to a penalty of 10/. {a) . The like penalty is incurred by any 
 
 person who obstructs an inspector in the execution of his cluty^ who 
 
 is empowered to seize and detain such person until he can be taken 
 before some justice of the peace^ or other person having proper 
 jurisdiction (b) . 
 
 As to the power of the Board of Trade to detain unseaworthy ships, 
 see 39 & 40 Vict. c. 80. 
 
 As to the powers of the Board of Trade under the Passengers Acts, 
 see post, part III., ch. 8. 
 
 2. Local Marine Boards. 
 
 By the Mercantile Marine Act, 13 & 14 Vict. c. 93, and the Mer- 
 cantile Marine Amendment Aot, 14 & 15 Yict. c. 96, the Board of 
 Trade was authorized to establish local marine boards at such of 
 the seaports of the United Kingdom as had in ships ordinarily 
 employed as foreign-going ships (that is to say, ships employed in 
 trading or going beyond the limits of the coasts of the United 
 Kingdom, the Channel Islands, or the Isle of Man, and the continent 
 of Europe between the rivers Elbe and Brest, both inclusive), a 
 registered tonnage of 30,000 tons or upwards ; and at such other 
 places as it might appoint for that purpose. 
 
 These Acts have been repealed, but the system thus established is 
 continued by the 17 & 18 Yict. c. 104 (c). The marine boards are 
 to be constituted partly of certain local officers wlio are members 
 ex officio, partly of members appointed by the Board of Trade, and 
 partly of members elected by the owners of foreign-going ships and 
 home-trade passenger ships at such seaports. 
 
 An important part of their duties, relating to the qualifications of 
 masters and mariners, will be discussed in the next chapter. 
 
 They were required, also, in every seaport in -which there is a 
 local marine board, to establish shipping offices and superintendents 
 of them, to be called shipping masters, over whom they were to have 
 complete control, subject to the general superintendence of the 
 Board of Trade {d}. These offices are, imder the M. S. Act 
 Amendment Act, 1862, 25 & 26 A'^ict. c. 63, s. 15, to be termed 
 " Mercantile Marine Offices,'^ and the officers termed shipping 
 masters and deputy shipping masters are to be termed " Super- 
 intendents and Deputy Superintendents " of such offices. 
 
 (a) Sect. 15. (c) Sect. 110, Aud see 36 & 37 Vict. 
 
 (J) Sect. 16. c. 85, s. 10. 
 
 (d) Sect. 122.
 
 4. NAVAL COURTS. 75 
 
 Part II. 
 3, Duties of Mercantile Marine Offices (e). 
 
 The general business of the superintendents of mereantile marine 
 offices so appointed is to afford facilities for engaging seamen, 
 by keeping registries of their names and characters ; to superintend 
 and facilitate their engagement and discharge ; provide means for se- 
 curing their presence on board at the proper time ; to facilitate the 
 making of apprenticeships (/) to the sea service, and perform such 
 other duties relating to merchant seamen and merchant ships as will 
 appear in other parts of this Treatise to be committed to them by the 
 Act of Parliament (//). 
 
 Persons appointed by the board are to be deemed clerks or servants 
 ■within 25 Vict, c, 96, and may be guilty of embezzlement, and 
 punished accordingly. 
 
 4. Naval Courts. 
 
 As to naval coui'ts on the high seas and abroad — and as to the 
 power of such courts to supersede the master, to discharge seamen, to 
 decide disputes as to vrages, &c., see ss. 260-266; 18 & 19 Vict. 
 c. 91, s. 18 ; 34 & 35 Vict. c. 110, s. 8. 
 
 (e) Sec 25 & 26 Vict. c. 63, s. 15. (^) Sect. 124. 
 
 (/) Sects. 141 to 145.
 
 Part III. 
 
 PART THE THIRD. 
 
 OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MERCHANT SHIPS. 
 
 CHAPTER I. 
 
 Sect. 1. Of the Qualijicatlons oftlie 3Iaster and JIaies, p. 76. 
 
 2. Of Engineers, p. 80. 
 
 3. Of 3Iariners,^. 81. 
 
 1. Of the Qualifications of the Masters and Mates. 
 
 [The master of a ship is the person entrusted -with the care and 
 management of it. His power and authority are so greatj and the 
 trust reposed in him is of so important a nature^ that the greatest 
 care and circumspection ought to be used by the owners in the choice 
 and appointment (a) of him. It appears^ by the language of the 
 ancient sea-laws and ordinances^ that the master was formerly in 
 almost every instance a part-owner of the ship, and consequently in- 
 terested in a twofold character in the faithful discharge of his duty. 
 At present, it frequently happens that he has no property in the ship. 
 The law of some countries requires a previous examination of the 
 person to be appointed to this important office, in order to ascertain 
 his nautical experience and skill ; in other countries, he is liable to be 
 punished as a criminal if, having undertaken the charge, he is found 
 incompetent to the performance of it [b] . In this country the owners] 
 
 (or) The owner appoints the master; C«;'/;e, 2 Camp. 339 ; the Tartar,! Hagg. 
 
 where there are several owners the right to 3^; the Zodiac, 1 Hagg. 120.) It may, 
 
 appoint is in the majority in interest. under circumstances, he made by the agent 
 
 (MoUoy, b. 2, c. 1, s. 4.) If the master die, of the owner (the Kennersley Castle, 3 
 
 desert, or become otherwise incompetent to Hagg. 1), or by the consignees of the cargo, 
 
 discharge his duties dm-ing the voyage, the &c. (The Alexander, 1 Dods. 278; the 
 
 chief mate succeeds him in his command, Mtdicon, 3 Hagg. 9.) As to the power of 
 
 and becomes master. {Hanson v. Hoyden, a naval court to supersede the master and 
 
 37 L. J. C. P. 66; L. E. 3, C. P. 49; the appoint a new one, and as to such a power 
 
 TectimseJi,Zy^.'B,o\>.\4:Q;lienno\. Bennett, being vested in any court having Admi- 
 
 3 Q. B. 768.) In cases of necessity at a ralty jurisdiction in any of H. M.'s doini« 
 
 foreign port, in the absence of the owner, a nions, see ss. 240, 263. 
 
 master may be appointed or another one (6) By the French Ordinance, liv. 2, tit. 
 
 substituted in the place of the master ap- 1, art. 1, " Aucun ne poiirra (;i-apres etre 
 
 pointed by the owner. By whom such ap- refw capitaine maitre ou patron de navire, 
 
 pointment should be made must depend qu'iln'ait 7iavigue pendant cinq ans,et n'ait 
 
 upon circumstances. (Stoet on Agency, ete examine pniliquement sur lefait de la 
 
 36,120; the Cynthia, W Jur.74:8 ; Stokes y. navigation, et trouve capable par deux on«
 
 1. QUALIFICATIONS OF MASTERS AND MATES. 77 
 
 [arc {c) left to their own discretion as to the skill and honesty of the Chap. 1. 
 
 master ; and although he is bound to make good any damage that 
 
 may happen to the ship or cargo, hy his negligence or unskilfnlness, 
 if he is of ability to do so_, yet he cannot ba puuislied as a criminal for 
 mere incompetence.] 
 
 It seems that it is not now necessary that the master of a British 
 ship should be a British subject. 
 
 By the Merchant Shipping Act, 1851, the Local Marine Boards Examinations 
 are required to provide for the examination at their respective ports °^ "tasters ami 
 of persons who intend to become masters or mates of foreign-going (d) "^ 
 or home-trade passenger ships ((/), or who wish to procure certifi- 
 cates of tlieir competency, and may appoint, remove, and re-appoint 
 examiners to conduct such examinations and otherwise regulate 
 them (e). 
 
 Rules may be laid down, as to the conduct of such examinations 
 and the qualification of the applicants, by the Board of Trade, and 
 no examiner is to be appointed unless he possesses a certificate of 
 qualification, granted by it [f). 
 
 The Board of Trade may depute any of its officers to assist at such 
 examinations, and wdien they have been passed satisfactorily, and the 
 applicant has given evidence of his sobriety, experience, ability, and 
 general good conduct on ship-board, the Board of Trade may, upon 
 a report from the local examiners, deliver to him a certificate of 
 competency, to act as first, second, or only mate of a foreign-going 
 ship {d), or master or mate of a home-trade passenger ship (ff). 
 
 If the Board of Trade has reason to believe such report to have 
 been unduly made, it may remit the case cither to the same or to 
 any other examiners, and require a re-examination of the applicant, 
 or a further inquiry into his testimonials and character, before grant- 
 ing him a certificate [h) . 
 
 Certificates of service, difi'ering in form from certificates of com- Certificates of 
 petency, are to be granted by the Board of Trade to persons who service, 
 prove themselves entitled thereto, under the following regulations (i). 
 
 cietis maitres en presence des officiers de (c) 5th ed. [Tenteeden]. But see now 
 
 I'Amiraute, et dti professeur d'hydrograpliie, infra. 
 
 s'il y'en a dans le lieu ; " upon which Valin (rf) Wliat this term hioludes, see s. 2 
 
 vcm-^vks,'^ L' inconvenient est neanmoins que (e) 17 & 18 Vict. c. 104, s. 131. 
 
 des sujetstres capables et a qui il ne manque (f) Sect. 1-32 ; as to the fees to be paid 
 
 quelaformalitedelareception,perdentqueU for examination, see s. 133; 25 & 26 \ict. 
 
 quefois Vavantage de commander des navires c. 63, s. 7. 
 
 a V occasion, par la miserahle avarice ou par (g) Sect. 13-i. By the Merchant Shipping 
 
 le caprice, de certains officiers de I'Amiraute Act Amendment Act, 1862, 25 & 26 Vict. 
 
 qui ne sont pas d'humeur d'accorder ces c. 63, s. 17, provision is made for the ex- 
 
 sortes de demissoires." Cleirac, in his amination by examiners of the Local Marine 
 
 " Jugemens d'Oleron," ch. i., says, tliat the Board of the district, at any port of which 
 
 title of the master of a ship implies honour, inconvenience arises in consequence of the 
 
 experience, and morals, " reverendum hono- distance which applicants for certificates 
 
 rem sumit quisquis magistri nomen ac- have to travel for their examination at such 
 
 ceperit." The ordinances of the Hanse port, by examiners of the Local Marine 
 
 Towns, of Bilboa, of Prussia, and Sweden, Board of the district in which it is situate, 
 
 have all required the master to be previously in the presence of persons (if any) appointed 
 
 examined, and certified, to be fit by expe- for tliat purpose by the Board of Tiade. 
 
 rience, competence, and character. — Mr. (Ji) Sect. 13J-. 
 
 Justice Shee. {i) Sect. 135.
 
 78 
 
 QUALIFICATIONS OF MASTERS AND MATES. 
 
 Part III. 
 
 Masters, &c., 
 of ships must 
 have certi- 
 ficates of com- 
 peteucj' or 
 service. 
 
 Certificates 
 to be in dupli' 
 cate. 
 
 Every person who, before the 1st of January, 1851, served as 
 master in the British merchant service, or who has or shall hereafter 
 attain the rank of lieutenant, master, passed mate, or second master, 
 or any higher rank, in the service of Her Majesty or of the East 
 India Company, shall be entitled to a certificate of service as master 
 for foreign-going ships. 
 
 Every person who before the same date served as mate in the 
 British merchant service shall be entitled to a certificate of service as 
 mate for foreign-going ships. 
 
 Every person who, before the 1st of January, 1854, has served as 
 master of a home -trade passenger ship shall be entitled to a certi- 
 ficate of service as master of home-trade passenger ships. 
 
 Every person who before that date has served as mate of a home- 
 trade passenger ship shall be entitled to a certificate of service as 
 mate for home-trade passenger ships. 
 
 As to colonial certificates, see 32 & 33 Vict., c. 11, s. 8. 
 
 No foreign-going ship (a) or home-trade passenger ship {a) shall 
 go to sea from any port of the United Kingdom unless her master, 
 and in the case of a foreign-going ship, the first and second mates, 
 or only mate, have obtained and possess certificates either of com- 
 petency or service, appropriate to their several stations in sucli ship, 
 or of a higher grade {b) . 
 
 No ship of 100 tons burden or upwards shall go to sea unless at 
 least one officer besides the master has obtained and possesses a 
 certificate appropriate to the grade of only mate therein, or to a 
 higher grade (<?) . 
 
 Every person who having been engaged to serve as master, or as 
 first or only mate of a home-trade passenger-ship, goes to sea as such 
 master or mate, without being at the time entitled to and possessed 
 of such certificate, or who employs any person in any of these 
 capacities without first ascertaining that the person so employed is 
 at the time entitled to such certificate as above required, is liable to 
 a penalty of 50/. {d) . 
 
 Certificates of competency for foreign-going ships are to be deemed 
 of a higher grade than the corresponding grades for home-trade 
 passenger ships, and entitle the holder of them to go to sea in the 
 corresponding grade in such last-mentioned ships (e). But no certi- 
 ficate for a home-trade passenger ship will entitle the holder to go to 
 sea as master or mate of a foreign- going ship (/). 
 
 Certificates of competency and of service are to be made in 
 duplicate ; one part to be delivered to the person entitled to it, the 
 other kept and recorded by the registrar-general of seamen, or by 
 such other person as the Board of Trade may appoint {ff). Im- 
 mediate notice is to be given to such registrar or other person of all 
 orders made by it for cancelling, suspending, altering or aff'ecting 
 these certificates ; and such registrar or other person is to make a 
 
 (a) What this term inchades, see s. 2. (e) Sect. 137. 
 
 (b) Sect. 136 J 25 & 26 Vict. c. 63, s. 13. (f) Sect. 137. 
 
 (c) Sect. 136. iff) Sect. 138. 
 (rf) Sect. 136; see ss. 131, 109.
 
 1. QUALTFTCATTONS OF MASTERS AND MATES. 79 
 
 corresponding entry in the record of certificates (//) . A copy of a Chap. 1. 
 
 certificate^ purporting to be certified by such registrar, or his assis- 
 
 tant, or such other person, is to be prima facie evidence of such certi- 
 ficate, and a copy purporting to be so certified of any entry made as 
 aforesaid in respect of any certificate, is to be prima facie evidence 
 of the trutli of the matters in such entry ( i ) . 
 
 On signing the agreement with his crew, tlie master of every When certl- 
 foreign-going vessel {k) shall produce to the superintendent of mcr- fif^"*'-" to be 
 cantile marine offices, before -whom the same is signed, the certificate P™^^"^<^'^- 
 of competency or service which sucli master and his first and second 
 mate, or only mate, are required to possess ; and shall i-eccivc from 
 the superintendent of mercantile marine officers a certificate of his 
 having done so, and having signed the agreement. The master of 
 every foreign-going ship sliall, before proceeding to sea, produce the 
 certificate, so to be given to him by the superintendent of mercantile 
 marine offices, to the collector or comptroller of customs ; and no 
 officer of customs shall clear any foreign-going ship outwards, or 
 permit her to proceed to sea, without such production (/). 
 
 The master or owner of home-trade passenger ships {k) of more 
 than eiglity tons burden shall, twice in every year, produce to the 
 superintendent of mercantile marine offices the certificates of com- 
 petency or service, Avhich lie and his first or only mate, as the case 
 may be, are required to possess (??i) . 
 
 The superintendent of mercantile marine offices shall thereupon 
 give to the master a certificate of such delivery and production ; and 
 no officer of customs shall grant a clearance or transire for any such 
 ship, without the production of such certificate. And if any such 
 ship attempts to ply, or go to sea without such clearance or transire, 
 any such officer may detain her until such certificate is produced (/<) . 
 
 Every person implicated in obtaining by false representation, or in Forging, &c., 
 forging, altering, using or lending, any such certificate, or copy of certificates, 
 certificate, is for every such offence to be deemed guilty of a mis- 
 demeanor (o). 
 
 The Board of Trade, in case of loss without fault by any master or Loss of certi- 
 mate of his certificate, may direct a copy of the certificate, to which ficate. 
 he appears by the record to be entitled, to be made out, certified, 
 and delivered to him ; and such copy is to have all the effect of the 
 original {p). 
 
 The Board of Trade may suspend or cancel the certificates of com- Cancelling 
 potency or service of any master or mate, if he be shown to have same. 
 been convicted of any offence ; and the like power may be exercised 
 by the Local Marine Board, Magistrates, Naval Court, Admiralty 
 Court, or other court or tribunal by which the case is investigated or 
 tried, if the master or mate be reported to be incompetent, or guilty 
 of any gross act of misconduct, drunkenness, or tyranny ; or if, under 
 
 (A) Sect. 138. ()«) Sect. 161. 
 
 (i) Sect. 138. (») Sect. 162. 
 
 (k) Sect. 139. (o) Sect. 162. 
 
 (/) As to the meaning of this term, see (jp) Sect. 140. 
 s. 2.
 
 80 QUALiriCx\TIONS or MASTERS AND MATES. 
 
 Part III. the provisions of the 8th part of the principal Act^ or by a naval 
 court, it is reported that the loss or abandonment of or serious damage 
 to any ship or loss of life has been caused by his wrongful act or 
 default ; or if he is superseded by any Admiralty or Naval Court ; or 
 if upon investigation authorized by the legislative authority in any 
 British possession he is reported to have been guilty of such mis- 
 conduct, or to have caused by his wrongful Act or default such loss 
 or damage as are above stated («) . 
 
 By the Merchant Shipping Act Amendment Act, 25 & 26 Vict. 
 
 c. 63, s. 5, further provisions are made respecting the cancellation, 
 
 suspension, and re-issue of certificates, for which the reader is referred 
 
 to the section {b). 
 
 Pilotage ^s to the master obtaining a pilotage certificate, see post, ch. 7 of 
 
 certificate. ^^^-^ p^^^.^^ 
 
 2. Of Engineers. 
 
 By that Act also the provisions we have just considered are extended 
 to engineers, respecting whom it is further provided by sect. 5 that 
 engineers' certificates shall be of two grades, first class, and second 
 class, and that on and after the first day of June, 1863, eveiy steam 
 ship which is required by the principal Act to have a master possess- 
 ing a certificate from the Board of Trade, shall also have an engineer 
 or engineers possessing a certificate or certificates from the Board of 
 Trade as follows ; that is to say. Every foreign-going steam ship of 
 100 nominal horse-power or upwards shall have two certificated 
 engineers, the first possessing a ''^ first-class engineer's certificate,-"^ 
 and the second possessing a " second-class engineer's certificate,'' or a 
 certificate of the higher grade : Every foreign-going steam ship of 
 less than 100 nominal horse-power shall have an engineer possessing 
 a " second-class engineer's certificate," or a certificate of the higher 
 grade : Every sea-going home-trade passenger steam ship shall have 
 an engineer possessing a " second-class engineer's certificate,''' or a 
 certificate of the higher grade : And every person who, having been 
 engaged to serve in any of the above capacities in any such steam 
 ship as aforesaid, goes to sea in that capacity without being at the 
 time entitled to and possessed of such certificate as is required by 
 this section, and every person who employs any person in any of the 
 above capacities in such ship without ascertaining that he is at 
 the time entitled to and possessed of such certificate as is required 
 by this section, shall for each such ofi"ence incur a penalty not 
 exceeding 50/. 
 
 For the provisions relating to the examination for engineers' certi- 
 ficates (c) ; the fees to be paid by applicants for examination {d) 
 the certificates of competency to be granted to those who pass (e) 
 the delivery of certificates of service on proof of certain service (/) 
 
 (a) 17 & 18 Vict. c. 10-i, s. 242 j 25 & 26 {d) Sect 7. 
 
 Vict. c. 63, ss. 23, 24. (e) i^ect. 8. 
 
 (J) Sects. 23, 24. (/) 25 & 26 Vict. c. 63, s. 9, post, 
 (c) 25 & 26 Vict. c. 63, s. 6, post.
 
 3. OF MAUINEES. 81 
 
 and the power of the Board of Trade and Local Marine Board to Chap. 1. 
 
 institute investigations into the conduct of any certificated engineer 
 
 whom it has reason to believe unfit from incompetency or misconduct 
 to discharge his duties [g) , the reader is referred to the Act. As to 
 cancelHng engineers certificates, see 25 & 26 Vict. c. 63, ss. 23, 24. 
 
 The declaration required to be given by the engineer surveyor of 
 every passenger steamer {h), under section 309 of the 17 & 18 Vict. 
 c. 104, must, in the case of a ship by this Act required to have a 
 certificated engineer, contain a statement that the certificate of 
 the engineer of such ship is such and in such state as this Act 
 requires (?*). 
 
 As to colonial certificates to engineers, sec 32 & 33 Vict. c. 11, 
 s. 8. 
 
 3. Of Mariners. 
 
 [The other persons employed in the ordinary navigation of a 
 trading ship, fall under the general denomination of mariners and 
 seamen. 
 
 For the employment of a British sliip, it is {k) necessary that 
 the master, and a certain proportion of the mariners, should in 
 many cases be British subjects. So long ago as the reign of 
 Queen Elizabeth, it was made unlawful to lade or carry any fish, 
 victual, or other things in any bottom, whereof a stranger born 
 was ship-master, from one part of the realm to another (/). 
 An ordinance made in the time of the Usurpation required, in 
 some particular cases, the master and mariners, or the most part 
 of them, to be of the people of the Commonwealth (m) . The cele- 
 brated Navigation Act, which passed immediately after the llestora- 
 tion, required the master and three-fourths of the mariners to be 
 subjects of the King, wherever it required a trading ship to be 
 either English-built or English-owned («) ; and by a statute passed 
 in the following year, " the number of mariners was to be 
 accounted according to what they should have been during the whole 
 voyage " (p) . These regulations, however, having been found incon- 
 venient in time of war, several temporary statutes {p) allowed, 
 during such periods, the employment of three-fourths foreign seamen ; 
 and the two first of those statutes conferred the privileges of British 
 subjects upon foreign seamen after two years' service in the time of 
 war, either on board a ship of war, or a merchant or trading vessel.] 
 
 ((/) Sect. 10. 9th of October, 1651, and the Navigation 
 
 (h) Sect. 12. Act, add also the forfeiture of the vessel.] 
 (0 See 25 & 26 Vict. c. 63, s. 12. As to ()») Ordinance ot the 9tli of October, 
 
 the appeal on refusal of certain certificates, 1651, Scobell's Act. 
 
 see 39 & 40 Vict. c. 80, s. li. («) 12 Car. 2, c. 18. See Reeves' Law 
 
 (k) This was so until the session of Par- of Shipping and Navigation, pp. 304, 305. 
 
 liament a.d. 1853. The paragraph in the (o) 13 & 14 Car. 2, c. 11, s. 6. 
 
 text is from the 5th ed. of this work pub- (j)) 6 Anne, c. 37 ; 13 Geo. 2, c. 3 ; 28 
 
 lished in 1827. Geo. 2, c. 16 ; 19 Geo. 3, c. 14; 33 Geo. 3, 
 
 (l) [5 Eliz. c. 5, s. 8, under forfeiture of c. 26 ; 43 Geo. 3, c. 64. 
 
 the goods. To which the ordinance of the
 
 82 
 
 QUALIFICATIONS OP MASTERS AND MARINERS. 
 
 Part III. 
 
 Foreigners 
 may now be 
 employed in 
 British ships. 
 
 [This subject was further regulated by a statute passed in the 
 thirty-fourtli year of the reign of George the Third, as to Great 
 Britain («) ; and by another statute passed in the forty-second of 
 the same reign, as to Ireland {b) . But that statute, and all others 
 relating to the subject, having been repealed in the sixth year of the 
 reign of King George the Fourth], it was, by a statute of that year, 
 and subsequently by the 3 & 4 Will. 4, c. 54, the 8 & 9 Yict. c". 88, 
 and the 12 & 13 Vict. c. 29, enacted, that no ship should be admitted 
 to be a British ship, unless duly registered and navigated as such ; 
 and that every British registered ship (so long as the registry of such 
 ship should be in force, or the certificate of such register retained for 
 the use of such ship) should be naAagated during the whole of every 
 vovage (whether with a cargo or in ballast), in every part of the 
 w^orld, by a master who is a British subject, and by a crew whereof 
 three-fourths at least are British seamen ; and if such ship be employed 
 in a coasting voyage from one part of the United Kingdom to another, 
 or in a voyage between the United Kingdom and the islands of 
 Guernsey, Jersey, Alderney, Sark, or Man ; or from one of the said 
 islands to another of them, or be employed in fishing on the coasts of 
 the United Kingdom, or any of the said islands, then the whole of the 
 crew shall be British seamen {c) . And it was further enacted, that 
 no person should be qualified to be master of a British ship, or to be 
 a British seaman, within the meaning of the Act, except natural-born 
 subjects of Her Majesty, or persons naturalized by Act of Parliament, 
 or Act of some British colonial legislative authority, or made denizens, 
 or who have become British subjects by virtue of conquest, or cession 
 of some newly-acquired country, who should have taken the oath of 
 allegiance, or the oath of fidelity required by the treaty or capitulation ; 
 Asiatic sailors or Lascars, being natives of any of the places within 
 the limits of the charter of the East India Company, and under the 
 government of Her jNIajesty, or the said company ; and persons who 
 had served on board some of Her INIajesty's ships of war, in time of 
 war, for the space of three years. 
 
 But the 12 & 13 Vict., which required every British ship to be 
 navigated by a master who is a British subject, and by a crew of 
 whom the whole, or such proportion as therein mentioned, are British 
 subjects, has been repealed {d) ; and there is now no restraint on the 
 employment of foreigners in British ships. 
 
 (a) 34 Geo. 3, c. 68. (d) 16 & 17 Y 
 
 (b) 42 Geo. 3, c. 61. Yict. c 120. 
 
 (c) 8 & 9 Vict. c. 88, s. 18 j 12 & 13 Yict. 
 c. 29. 
 
 c. 131, s. 31 ; 17 & 18
 
 master's authoeity as to employment of the ship. 83 
 
 Chap. 2. 
 
 CHAPTER II. 
 
 OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE 
 EMPLOYMENT OF THE SHIP; AND HEREIN^ 
 
 Sect, 1. Of the different kinds of Contract under which Merchant Ships are emploi/ed, 
 p. 83. 
 
 2. Owners of Ships are hound hy Contracts of the Master, relative to the usual 
 
 course of the Ship's Emplotpnent, p. 83. 
 
 3. Cases upon this Subject, p. 86. 
 
 4. Master's authority, when limited, p. 89. 
 
 5. Ground of the Liability of Owners on the Contracts of the Master, p. 89. 
 
 1. Of the different kinds of Contract under which Merchant Ships 
 are emploijed (e). 
 
 [A TRADING ship is employed by virtue of two distinct species of 
 contract : First. The contract ])y which an entire sliip, or at least the 
 principal part thereof, is let for a determined voyage to one or more 
 places. This is usually done by a Avritten instrument, signed and 
 sealed, and called a charter-party. Secondly. The contract by which 
 the master or owners of a ship destined on a particular voyage 
 engage separately, with a number of persons unconnected with each 
 other, to convey their respective goods to the place of the ship's 
 destination. A ship employed in this manner is usually called a 
 general ship. 
 
 The nature of each of these contracts will form the subject of 
 particular discussion hereafter (/). In the present chapter it is pro- 
 posed to consider only the power of the master to bind the owner of 
 the ship by these engagements {g) . 
 
 2, Oivners of Ships are bound by Contracts of the Master, relative to 
 the usual course of the Ship's Employment {h) . 
 
 The owners rarely navigate a trading ship by themselves ; the 
 conduct and management of it are almost always entrusted to the 
 master, whether he has or has not a partial property in it. In the] 
 
 (e) As to commissioners of customs mak- written instrument not under seal, called a 
 
 ing regulations respecting the employment Memorandum of Charter. 
 
 of vessels and boats not exceeding 100 tons, (h) Where transfer of ship during voyage, 
 
 see 39 & 40 Vict. c. 36, s. 169, et seq. see Mercantile and Exchange Bank \. Glad- 
 
 (J) Part IV. ch. 1, 2, 3, 4. stone, 37 L. J. Ex. 130. Where ship under 
 
 (y) Now perhaps more frequently by a a charter-party, see post, Part IV. ch. 4. 
 
 G 2
 
 84 ' mastee's authority as to 
 
 Part III. Patter case he is the confidential servant or agent of tlie owners at 
 
 large ; in the former^ of his copartners. In either case^, by the law of 
 
 England^ and in conformity to the rules and maxims of that law in 
 analogous cases^ the owners are bound to the performance of every 
 lawful contract made by him relative to the usual employment of the 
 ship. They are bound to this performance by reason of their employ- 
 ment of the ship and of the profit derived by them from that employ- 
 ment {a) . One part-owner^ Avho dissents from a particular voyage in 
 the manner mentioned in the preceding chapter [b], is not bounds 
 because he does not employ the ship on that voyage, nor derive any 
 profit from it (c) . The course of the usual employment of the ship is 
 evidence of authority given by the owners to the master to make for 
 them and on their behalf a contract relating to such employment, and 
 consequently a contract so made by him is esteemed in law to have 
 been made by them.] The master also is answerable for his own 
 contract (d), 
 
 [This rule of the law of England agrees with the law of other com- 
 mercial nations. When the Romans began to engage in commerce {e), 
 a new species of action, under a particular name, appears to have been 
 introduced, to ascertain and enforce this responsibility of the owners 
 for the acts of their servants ; and by the Praetorian Edict, the 
 owners, or (to render the Latin word more nearly) the employers, of 
 the ship are made responsible for the faults of the mariners and 
 master, and for the contracts also of the master ; but not for the 
 contracts of the mariners, because the mariners are not appointed for 
 the purpose of conducting the business of the ship, but only of labour- 
 ing in its navigation under the orders of the master. And with 
 regard to the contracts of the master, a distinction is taken by the 
 commentators on the edict between such as the owners have autho-] 
 
 (a) See MoUoy, b. 2, ch. 2, s. 14. citorem autem eum dicimus, ad quern ohven- 
 
 (i) Ante, p. 59. Hones et reditris omnes perveniunt, sive is 
 
 (c) By Holt, Ch. J., in Boson v. Sand- Dominus sit, sive a domino navem per 
 ford, Cartb. 63. aversioneni conduxit vel ad femptcs, vel in 
 
 (d) Morse v. Slue or Since, 1 Vent. 190, perpetuum." Dig. 14, 1, 1. And Roccus, 
 238. Stoey, On Agency. Priestley v. Not. 3, speaks to the same effect of the 
 Femie,b H. & C. 977. See po5^. Part IV, Magister. This author usually calls the 
 ch. 4. owTier Dominus navis, but he often speaks 
 
 (e) [Dig. 4, 9. Nauta\ caupones stabu- of him as the person qui exercet navem. 
 larii, ut recepta restituant. Again, in the Dig. 4, 9, 1, 2, we find the fol- 
 
 Dig. 14, 1 : De Exercitoria Actione. lowing commentary on the Praetorian Edict. 
 
 Molloy, in his Treatise de Jur. Marit. et The terms of the edict are; " Xautos, cau- 
 
 Naval, book 2, ch. 2, sect. 2, appears to pones stabularii, qtiod cujusquesalvum fore 
 
 have mistaken the character of the Exercitor receperint, nisi restituant, in eos judicium 
 
 navis of the civil law, and to have supposed dabo." Upon which Ulpian writes thus : 
 
 him to be the master of the ship ; whereas, " Ait prcetor nautce ; nantam accipere 
 
 in truth, he is the employer of the ship, dehemus, cum qui navem exercet, quamvis 
 
 and consequently must be the absolute, or nautce appeUantur omnes, qui navis navi' 
 
 at least the temporary owner : " Magistrum grandee causa in navesint, sed de exercitore 
 
 navis accipere dehemus, cui totius navis solummodo prcetor sentit, neo enim debet 
 
 cura mandata est. Magistrum autem perremigem, ant inesonautam obligari, sed 
 
 accipimus non solum, quem exercitor prce- perse, vel per navis magistrum,"^ 
 posuit, sed et eum, quem magister, Hxer-
 
 EMPLOYMENT OF THE SHIP. 85 
 
 [rized him to make, and such as they have not authorized him to make ; Chap. 2. 
 but in general it appears that they were answerable for all aets of 
 which his character and situation afforded the presumption of autho- 
 rity, even if he contravened the orders received from them, unless the 
 party with whom he contracted were acquainted with the orders by 
 which his authority was restrained. Thus it is expressly laid down, 
 that if the master appointed another person to supply his place, con- 
 trary to the positive orders of the ownei's, the owners were responsible 
 for the conduct of the master so appointed, even against their will. 
 On the other hand, if a ship were built for the purpose of conveying 
 passengers only, or merchandise only, and employed in that particular 
 trade, the owners were not answerable for a contract made by the 
 master to employ the ship for a different purpose in a different trade. 
 This agrees with the terms of the rule as above laid down, because 
 such a contract docs not relate to the usual employment of the 
 ship(/). 
 
 The modern nations of Europe appear to have adopted nearly the 
 same rules, founded on the same principle {g), with certain limitations, 
 that will be noticed hereafter. Indeed, it often happens that no con- 
 tract can be made with the owners personally, as when the ship is at a 
 place distant from their residence. Even when the ship is at the place 
 of their residence, and is intended to be employed as a general ship, 
 it rarely happens in practice that the owners interfere with the receipt 
 of the cargo ; and without doubt they are by our law bound by every 
 contract made by the master relative to the usual employment of such 
 a ship. 
 
 When a charter-party is made by the master in a foreign port, iu 
 the usual course of the ship's employment, and under circumstances 
 which do not afford evidence of fraud, or when it is made by him at 
 the ship's home, under circumstances Avhich afford evidence of the 
 assent of the owners, the ship and freight, and therefore, indirectly, 
 the owners also, to the amount of the value of the ship and freight, 
 are, by the marine law, bound to the performance [h) . " The ship is] 
 
 (/) Igltur pvcBposilio cevtam legem dat regwne ct ccrto mari negotietur ; ut eccc 
 
 contrahentibns. Qiiare si eiim prceposult sunt naves qui Brundusium a Cassiopa vel 
 
 navi ad hoc solum, ut vecluras exigat non a Dgrracchio vectores trajiciunt, ad onera 
 
 v.t locet ; quod forte ipse locaverat ; non inhabiles. Item qucedamjluvii capaces, ad 
 
 icnchitur exercitor si viagister locaverat ; mare 7ion sufficientcs. — Dig. lib. 14, tit. 1. 
 
 vel si ad locandum tantum non ad exigent — 3£r. Justice S/iee. 
 
 dum idem erit diccndicm ; aut si ad hoc ut (g) [Roccus, Xot. 11 — 18 inclusive aud 
 
 vectoribus locet, non ut mercibus navem Xot. 26 — 28. Xot. 49 ; adJinem,an6.'Not. 
 
 prcBstet ; vel contra, modiim egrcssus, non 65. Guidon, ch. 18, art. 4; and Cleirac's 
 
 ohligabit cxcrcitorem, Scd et si, ut certis Comment thereon. French Ordinance, liv. 
 
 mercibus earn locet, proepositus est, puta 2, tit. 8. Des proprietaires de navires, art. 
 
 legumini, cannabce, ille marmoribus, vel alia 2, aud the Commentary of Valin thereon. 
 
 materia locavit; dicendum crit non teneri. Pothier, Charte-partie, s. 2, art. 3; Wel- 
 
 Qucedam enim naves onerarice qucedam {ut wood's Sea-Laws, tit. 15. See as to the 
 
 ipsi dicunt) iin^aTtiyoi (id est vectorum limitations. Part III. ch. 7, of this Treatise ] 
 ductrices)sunt. Et plerosque mandare scio {h) [An instance of a sentence in Spahi 
 
 ne vectores recipiant. JEt sic tit cerld against master and ship for barratry and
 
 86 master's authority as to 
 
 Part III. [bound to the merchandise, and the merchandise to the ship,'' are the 
 
 words of Cleirac [a). By the French ordinance [b) it is declared, 
 
 that the ship, with its furniture and freight, and the cargo, are 
 respectively bound to the stipulations of the charter-party ; and 
 Valin, iu his commentary, says the rule is the same, whether the 
 aflFreightment be made by the owner, or the master alone, even at the 
 place of the owner's abode, if the owner does not disavow it. 
 
 By the French ordinance (c) the master is bound to follow the adnce 
 of the owners when he freights the ship at the place of their abode. 
 The ordinance of the Hanse ToAvns (art. 58) is to the same effect. 
 Valin, in his Commentary on the French ordinance, restrains the 
 necessity of this consent of the owners to the presence of all or the 
 greater part of the owners, or of one appointed to act for all ; and 
 says, that if in such a case the master make a contract without their 
 consent, the owners may annul it, and make another by their own 
 authority : but the master himself will be answerable for the non- 
 performance of it. This doctrine is also adopted by his countryman 
 Pothier [d). 
 
 3. Cases vpon this Subject. 
 
 The general rule before laid down, viz., that the owners are bound 
 by every lawful contract made by the master relative to the usual 
 employment of the ship, is proved, as to the case of a general ship, by 
 the following judicial authorities (e). 
 
 In the case of Boson v. Sandford (/), which was an action brought 
 against some of the part-owners of a ship employed in the coasting 
 trade between Exeter and London, to recover the value of goods lost, 
 which had been delivered to the master at Exeter without the know- 
 ledge of the owners, to be conveyed from thence to London ; the 
 court held that the owners were answerable for a loss under such 
 circumstances. 
 
 In the case of Boucher v. Lawson [g) , which was an action brought 
 against the owner to recover the value of Portugal coin delivered to 
 the master at Lisbon, to be conveyed to London, and of which by the 
 tisuage of that particular trade the master was to receive the freight 
 to his OAvn use, and which the master had embezzled ; the court held 
 that, if it had appeared that the ship was employed in carrying goods 
 for hire, the owner would have been answerable for this loss : for 
 although the exportation of coin was prohibited by the laws of 
 Portugal, yet the importation of it into this country was allowed by] 
 
 deviation by the master, who had let the (c) Liv. 3, tit. 1 : Des Chartes-parties, 
 
 ship by a charter-party, is mentioned m an art. 2. 
 
 anonymous case in 2 Ch. Ca. 238.] (d) Pothier, Charte-partie, no. 48. 
 
 (a) Les Us et Contumes de la Mer, p. 72. (e) See Story on Agency, c. 6, s. 116. 
 
 (6) [French Ordinance, liv. 3, tit. 1 : Des (/) Garth. 58 ; 3 Lev. 258 ; 3 Mod. 321 ; 
 
 Chartes-parties, art. 11. And see liv. 1, 1 Show. 29, 101. 
 
 tit. 14.: Dela Saisiedes Vaisseaux, art. 16.] {g) Eep. temp. Hardwicke, p. 85.
 
 EMPLOYMENT OF THE SHIP. 87 
 
 [our laws, and so tlie trade was lawful here ; and it was of no con- Chap. 2. 
 
 sequence, whether the master was rewarded for his services by wages 
 
 paid by the owner, or by receiving part of the earnings of the ship ; 
 but as it did not appear that the ship was employed in carrying goods 
 for hire, but, for anything that appeared in the case, the ship might 
 have been sent to Lisbon for a special purpose, and if so (as the chief 
 justice said), no man could say that the master, by taking in goods of 
 his own head, could make the owners liable, it was decided that the 
 plaintiff should not recover. 
 
 The facts of the case of EUis v. Turner [h], which was an action 
 brought against the owners for the value of goods damaged by the 
 sinking of their vessel, were as follows : — The vessel was employed in 
 carrying goods from Hull to Stockwith and to Gainsborough, which 
 is a little further than Stockwith, but the freight was the same for 
 conveyance to either place. On former voyages the goods destined 
 to Stockwith had sometimes been delivered there on the way to Gains- 
 borough, and at other times carried forward to Gainsborough, and 
 delivered at StockAvith on the return to Hull. The goods in question 
 were delivered to the master on his express undertaking to deliver 
 them at Stockwith on his way to Gainsborough. This particular 
 undertaking was made by the master without the privity of the 
 defendants, but he had a general authority from them to receive and 
 coiivcy goods for the customary freight from Hull to Stockwith and 
 Gainsborough. The defendants had previously given public notice, 
 with which the plaintiff's agent who shipped the goods was acquainted, 
 that they would not be answerable for any loss or damage that might 
 happen to any cargo, unless occasioned by the want of ordinary care 
 and diligence in the master and crew, in which case they would pay 
 ten iitr cent, upon the loss, provided such payment did not exceed 
 the value of the vessel, but that they were willing to insure against 
 all accidents upon receiving extra freight in proportion to the value. 
 No agreement had been made for the payment of extra freight for 
 the goods in question. The vessel took in other goods to be delivered 
 at StockAvith in the present voyage, and arrived safely at that place. 
 The master delivered some of the other goods there, and was requested 
 by the wharfinger to deliver all that were destined for that place, but, 
 without the knowledge of the defendants, refused to deliver the 
 others, alleging that they were stowed below the goods destined to 
 Gainsborough. On the way from Stockwith to Gainsborough the 
 vessel sunk, without any want of ordinary care in the master or crew, 
 and the goods in question were damaged. The court held, that the 
 plaintiff should recover the amount of his loss ; and Lord Ken yon 
 said, ''As the vessel reached Stockwith in safety, and might have 
 delivered the goods there, I think this action may be maintained ; 
 for though the loss happened in consequence of the misconduct of 
 the defendants' servant, the superiors (the defendants) are answerable] 
 
 Qi) 8 Term Rep. in K. B. p. 531.
 
 88 3iastee's authoeity as to 
 
 Part III. [for it in this action. The defendants are' responsible for the acts of 
 their servant in those things that respect his duty under them, though 
 they are not answerable for his conduct in those things that do not 
 respect his duty to them — as if he were to commit an assault upon a 
 third person in the course of his voyage/' 
 
 It may be observed, that in each of the above cases the contract 
 upon vrhich the action was brought was made by the master without 
 the particular knowledge of the owners. In the first, it was made 
 in the course of the usual employment of the vessel, and therefore 
 the court held the owners to be bound to the performance as a general 
 rule, although they thought the particular suit improperly brought. 
 In the second, the contract was not made, or at least did not appear 
 to have been made, in the course of the usual employment of the 
 ship, and therefore the owner was not bound by it. In the last, the 
 contract was made in the course of the usual employment of the ship, 
 and therefore it Avas considered to be a contract made in substance by 
 the owners. 
 
 From the decision of the last of the above cases, it seems also to 
 folio vr, that if the master make a particular engagement or warranty 
 relating to the conveyance of merchandise according to the usual 
 employment of the ship, the owners Avill be bound by such engage- 
 ment or warranty, although made without their knowledge. And the 
 law was so laid down by Lord Kenyon, in his directions to a jury 
 upon the trial of an action («) brought by a merchant against the 
 owners of a ship on a warranty that the ship should sail with convoy 
 from the place of rendezvous, which had not been complied with. A 
 broker in London had been employed by the master to advertise the 
 ship as a general ship, bound to Hamburgh ; and in the printed papers 
 the broker had inserted a clause purporting that the ship was to sail 
 with convoy from the place of rendezvous. There was no evidence 
 given either of the assent or dissent of the defendants (the owners) to 
 this warranty, or of their knowledge of it ; but there was contradic- 
 tory e-vidence upon a question made at the trial, whether the master 
 had forbidden the broker to insert this clause. His lordship, how- 
 ever, told the jury that he thought that point quite immaterial, for as 
 the broker Avas authorized to advertise the ship, the owners were 
 answerable to strangers for his acts, although he had exceeded his 
 authority, and must seek their remedy against him : and the plaintiff 
 succeeded in the cause. 
 
 From this rule of law, by which the owners are bound to the per- 
 formance of these contracts, it follows as a corollary, that they must 
 answer for a breach of them, although committed by the master or 
 mariners against their will, and without their personal fault.] 
 
 («) Eiu^uM V. DitcMJ, Guildliall Sit. p. Mich. Term, 40 Geo. 3.
 
 EMPLOYMENT OF THE SHU'. 89^ 
 
 Chap. 2. 
 4. Muster's Authority, when limited. 
 
 [But if the owners themselves have made a special contract for 
 the employment of their ship, the master cannot, by the general and 
 implied authority of his character as master only, annul such a 
 conti'act, and substitute another for it with the other contracting 
 party {b). 
 
 It seems also, that the master of a trading ship, entrusted to his 
 command for the purpose of procuring goods on freight, cannot bind 
 the owners by an engagement to carry goods free of freight. Such 
 an engagement certainly will not be within the scope of his authority 
 as above described (c) . 
 
 5. Ground of the Liability of Owners on the Contracts 
 of the Master. 
 
 The great responsibility which the law of commercial nations 
 cast upon tlie owners for the acts of the master in this and other cases 
 has appeared to many persons, at first view, to be a great hardship ; 
 but laying aside all consideration of the opportunities of fraud and 
 collusion, which would otherwise be afforded, it should always be 
 remembered that the master is elected and appointed by the owners, 
 and by their appointment of him to a place of trust and confidence, 
 they hold him forth to the public as a person worthy of trust and 
 confidence; and if the merchants whom he deceives could not have 
 redress against tliose Avho appointed him, they would often have just 
 reason to complain that they had sustained an irreparable injuiy 
 through the negligence or mistake of the owners, as the master is 
 seldom of ability to make good a loss of any considerable amount.] 
 
 (Jj) By Lord ELLEXBOEoroK, Cli. J., in goods which have never been sliipped 
 
 Burrjony. ^harpc,2 OAm\)h. 529. Sickens render his owniers responsible to one who 
 
 V. Irvliiff, 29 L. J. C. P. 25. has made advances upon the faith of the 
 
 (c) IJDcwell V. Moxon, 1 Taunt. 391.] bills of ladinar : Grant v. Kortvai/, 10 
 
 Meynolds v. Jex, 34 L. J. Q. B. 251. See C. B. 665. McLean v. Fleming, L. II. 
 
 Mercantile and Exchanrje Bank V. Glad- 2 H. L. (.Scot.) 128. As to the master's liahi- 
 
 stonc, 37 L. J. Ex. 130, L. R. 3 Ex. 233. lity, see 18 & 19 Vict. c. Ill, s. 3, post. 
 Nor can he, by signing bills of lading for
 
 90 master's authoeitt as to repairs, &c. 
 
 Part III. 
 
 CHAPTER III. 
 
 OF THE AUTHORITY OF THE MASTER AVITH REGARD TO REPAIRS AND 
 OTHER NECESSARIES FURNISHED TO THE SHIP ; AND HEREIN, 
 
 Sect. 1. Of tTie Liahiliti/ of Oionerx of SJiip and Employers of Master upon his 
 Contracts. Of proceediii()s against them persoiially, and against the 
 Ship, p. 90. 
 
 2. Of their personal Liahilitg on his Contracts for Necessaries, p. 91. 
 
 3. Of Charges on the Ship in Specie. Repairs done in England not privileged 
 
 as in Civil and Maritime Lam. Lien of Shipwright, p. 99. 
 
 4. Doctrine and Jurisdiction of the Court of Admiralty, p. 102. 
 
 5. In foreign ports Master may hypothecate his Ship, hut not generally at the 
 
 residence of his Owners. Of Contracts by Bottomry, p. 104. 
 
 6. Heqtiisites to validity of Bottomry Securities, p. 110. 
 
 7. Must be for relief of Ships' Necessities, p. 113. 
 
 8. Proceedings in Admiralty upon them, p. 115. 
 
 9. If several Securities of this Jcind, the last entitled to priority, p. 117. 
 
 10. Extent to tvhicJi Freight and Cargo may he pledged, p. 118. 
 
 11. Respondentia, 121. 
 
 1 . Of the Liability of Owners of Ship and Employers of blaster upon 
 his Contracts. Of proceedings against them personally, and 
 against the Ship. 
 
 [The obligation to 'svliicli the master of a ship may subject the 
 owners to pay the charge of repairing their ship, and the price of 
 stores and provisions supplied for the use of it, or to repay money 
 advanced for those purposes, is sometimes direct, furnishing an action 
 against themselves personally ; sometimes indirect, to be prosecuted 
 by a suit against the ship. It is proposed in the present chapter to 
 consider it distinctly under each of these forms. 
 
 It should be premised, however, that the master is always per- 
 sonally bound by a contract of this kind made by himself, unless he 
 takes care by express terms to confine the credit to his owners 
 only (a). But such a contract made by the owners themselves {b), 
 or under circumstances which show that credit was given to them 
 alone (c), gives the creditor no right of action against the master.] 
 
 («) \_Rich V. Coe, Cowp. 636.] Oarnam 359. Thompson v. Findon, 4 C. & P. 158. 
 
 V. Bennett, 2 Stra. 816. Wilkins v. Car- (b) Farmer v. Davies, 1 Term Eep. K. B. 
 
 michael, Dougl. 101. Farmer v. Davies, 108. 
 
 1 T. R. 108. Hoskins v. Slay ton, Ca. (c) E'oskins v. Slayton, before Lee J., at 
 
 terup. Hardw. 376. Essen/ v. Cobb, 5 Guildhall, Cases temp. Hardwickc, 376. 
 C. & P. 358. Castk v. Duke, 5 C. & P.
 
 master's authority as to repairs, &c. 
 
 91 
 
 [It should be observed also, that the owners here spoken of are not 
 in all cases the persons (d) in whom the absolute legal title of the 
 ship may be vested, but rather those from whom the master derives 
 his authority, and whose agent he is, on the particular occasion. 
 Some remarks have been offered on this head in the first chapter of 
 this Treatise (e). The owners of a packet employed by the Govern- 
 ment to cai'ry the mail are answerable for stores ordered by the 
 captain, although he is nominated by the postmaster-general (/). 
 
 Chap. 3. 
 
 2. Of their Personal Liability on his Contracts for Necessaries. 
 
 I have in the preceding chapter stated the nature and grounds of 
 the owners^ obligation, in the case of contracts made by the master 
 for the carriage of merchandise in their ship. Their obligation, in the 
 case of his contracts now under consideration, is of the same nature, 
 and depends upon the same principles — for, as those relate to the 
 employment of the ship, so these relate to the means of employing it ; 
 and accordingly wc find the obligation of the owners in both cases 
 laid down in the very same parts of the civil law {(/), and treated] 
 
 ((/) The power of a master, appointed 
 by a charterer, to pledge the ship hy 
 bottomry contract, does not appear to have 
 been questioned in our courts. Charter- 
 parties sometimes contain an express pro- 
 vision that a particular person shall be the 
 master. Generally he is appointed by the 
 owner, but whether for the purposes of the 
 ship's ordinary employment he be the ser- 
 vant of the owner, or of the charterer, will 
 often be matter of question. He may, as 
 we have seen {ante, p. 30 ), be himself the 
 charterer. In that character, or as a ser- 
 vant of the charterer, his duty in respect to 
 bottomry contracts would be one of extreme 
 delicacy, inasmuch as his bond may pledge 
 the ship to an extent nmch exceeding his 
 own interest in it, or the interest of his 
 employer. But besides this ordinary autho- 
 rity, he is clothed, viriutc officii, with the 
 character of a special owner of the ship, 
 repi'esentiug not merely the absolute owner 
 (Dominus navis), but also the temporary 
 owner or charterer (Exercitor navis). " He 
 has not the mere charge of it as servant : 
 3Iaffisier navis accipere debemus cui totius 
 navis cura mandata est. — Dig. lib. 14, tit. 
 1. Sec the observations of Mr. Justice 
 Story, in his Treatise on Agency, p. 91. 
 The same learned judge (American edit, of 
 this work, p. 126) cites, with approval, 
 a decision, in the case of Breed v. The Ship 
 Venus, by the district judge of Massa- 
 chusetts. The ship belonged to Boston, 
 and was chartered on a voyage to Bristol, 
 in England, and back to Boston. On the 
 homeward voyage she was compelled to go 
 into Kinsale, in Ireland, to refit, and there 
 
 the necessary sum for the repairs was ad- 
 vanced by a person connected in business 
 with the charterers, and a bottomry bond 
 was taken in their name for the amount. 
 The ship completed her voyage, and was 
 libelled in the Admiralty on the bottomry 
 bond by the charterers, and a decree passed 
 in their favour. On that occasion Judge 
 Davis said that he did not find any 
 authority, either from decided cases or 
 general principles, to introduce the limita- 
 tions contended for either as to the rights 
 of the master or the charterers ; that the 
 master, although appointed by the char- 
 terers, must be considered as approved by 
 the owner — and he had the same authority 
 as if appointed by the owner ; and that 
 althougli the charterers might have ad- 
 vanced their money, and have recovered the 
 amount, on the covenant in the charter- 
 party by the owner to keep the ship in 
 repair, yet they were not bound to do so ; 
 and by entering into the bottomry contract, 
 they waived their remedy on the charter- 
 party for the advances made for repairs. See 
 also the case of the Trident, post, p. 108. — 
 Mr. Justice Shee. 
 
 (e) Ante, p. 20, et seri. The transferee of a 
 ship when she is out at sea or in a foreign 
 port with which there is no opportunity of 
 communicating, will be presumed to adopt 
 the master or person who is then in command 
 as his agent, until there has been an oppor- 
 tunity of appointing another in his place. 
 Robins v. Potoer, 27 L. J. C. P. 257. 
 
 (/) Stolces V. Came, 2 Campb. 339. 
 
 {g) Dig. : De Exercitoria Actione, 14, 1, 
 1, 8, and 14, 1, 1, 7.
 
 92 mastee's authority as to eepaies, &c. 
 
 Part III. [under one head. And as the master in general appears to all the 
 
 world as the agent of the owners in matters relating to the usual 
 
 employment of the ship, so does he also in matters relating to the 
 means of employing the ship ; the business of fitting out^ victuallings 
 and manning the ship being left wholly to his management in places 
 where the owners do not reside, and have no established agent, and 
 frequently also even in the place of their own residence. His 
 character and situation furnish presumptive evidence of authority 
 from the owners to act for them in these cases, liable indeed to be 
 rebutted by proof that they, or some other person for them, managed 
 the concern in any particular instance, and that this fact was actually 
 known to a particular creditor, or was of such general notoriety that 
 he cannot be supposed to be, because he ought not to have been^ 
 ignorant of it, or that they were by the terms of the contract expressly 
 excluded (o).] 
 
 Thus, where the charterer of a vessel agreed by the charter-party 
 that, on the arrival of the ship at the outward port, he would, through 
 his agent there, supply cash to the master for the disbursement of the 
 vessel, to be repaid by bills to be drawn by the master on the owner, 
 and on the arrival there the agent supplied goods for the use of the 
 crew, and paid certain money demands made on the master, but did 
 not advance any actual cash ; it was held, that although no bills Avere 
 drawn by the master, yet as he had, independently of the stipulations 
 of the charter-party, authority to obtain supplies of goods and neces- 
 saries for the use of the ship, the owner was liable to the charterer 
 for the amount {b) . 
 
 [It is scarcely necessary to remark, that the master's contract with 
 the mariners employed in the navigation of the ship is one of those 
 which are obligatory upon the owner ; but it is proper to mention, 
 because the point has once been contested, that his contract with an 
 occasional pilot is of the same nature (c). 
 Supplies must In order, however, to constitute a demand against the owners, it is 
 be necessary, necessary that the supplies furnished by the master's order should be 
 reasonably fit and projjer foi' the occasion, or that money advanced to 
 him for the purchase of them should at the time appear to be wanting 
 for that purpose. The contrary, in either case, would furnish a strong 
 presumption of fraud and collusion on the part of the creditor. The 
 proper mode of ascertaining what is necessary is to ask what a prudent 
 owner would himself have done had he been present,] and the onus 
 of proof that the goods or money supplied were necessaries is on the 
 plaintiff {d). 
 
 {a) [^Bland, ex parte, 2 Kose, 91 ;] Wil- to the liability of a part-owner, see ante, 
 
 liamson v. Fage, 1 Carr, & K. 581 ; the p. 62. 
 
 Alexander, 1 Wm. Eob. Eep. 361. See {h) Weston v. Wrir^hf, 7 Mee. & W. 
 
 also observations ou this passage by Lord 396. Vaughan v. Fitzhugh, 3 Jur. 1002. 
 Campbell, in Frosi v. Oliver, 2 E. & B. (e) The Nelson, 6 Eob. A. E. 227. 
 
 301; Mitcheson v. Oliver, 5 E. & B. 419; {d) See Webster v. Seekamp, 4 B. & A. 
 
 and Gleadon v. Tinkler, Holt, Eep. 586. 352 ; Mackintosh v. Milcheson, 4 Exch. 
 
 See Brodie v. Howard, 7 C. B. 109. As 175.
 
 2. OWNEPvS LIABILITY TOR NECESSARIES. 93 
 
 [It is true, indeed, that Lord Chancellor Hardwicke once enter- Chap. 3. 
 
 tained a doubt as to the effect of contracts of this kind made by the 
 
 master under the orders of a managing owner, and directed a trial at 
 law to determine whether or not the other owners were chargeable (e) ; 
 but in an earlier case (/), where the master of a ship, having bought 
 provisions and stores upon credit, failed, and the tradesmen sued the 
 part-owners in the Court of Chancery for the price, the court {g), 
 considering the master as a servant to the owners, decreed that they 
 should pay in proportion to their shares, and said, that, " If the owners 
 paid their servant, yet if he paid not the creditors, they must stand 
 liable" {h). And in an action at law (/), the rule was said to be, 
 that jJ^'i^nd facie the repairer of a ship has his election to sue the 
 master who cmploj^s him or the owners ; but if he undertakes it on 
 a special promise from cither, the other is discharged. 
 
 In the cases before mentioned, the facts appear to have happened 
 in England. In a case {k) tried before Lord Kenyon, at Guildhall, 
 where the master of the ship had borrowed money abroad for the use 
 of the ship, his lordship held that the lender might recover against 
 the owners the money laid out upon the ship ; and this opinion was 
 afterwards confirmed by the Court of King's Bench. It Avas proved 
 at the trial that the master could not obtain money on the security of 
 the ship alone, which, in the event that happened, Avould have been 
 more beneficial to the owners, because the ship perished on the 
 voyage home. In such an event, the Consolato del Marc expressly 
 declares the owners not to be personally responsible (/).] 
 
 (e) Buxton v. Snee, 1 Vescy, 154, A. D. was detenniiied that he had a right to he 
 1748. repaid out of the proceeds of goods heloiig- 
 
 (f) SiJcering v. Degrave, 2 Vera. 643, ing to the owners, which had been landed 
 A. D. 1709. in a former part of the voyage, and they 
 
 (ff) Lord Chancellor Cowpek, I ])resumc. were ordered to account to him for the 
 
 (A) See also Stewart v. Hall, 2 Dow. 29. value of them. The learned author speaks 
 
 As to the liability of part-owners, see ante, of these decisions as an alteration of the 
 
 p. 62. law of his country, and cautions masters of 
 
 (i) Ganiam v. Bennett, 2 Stra. 810. ships against drawing bills upon their 
 
 (k) \^Erans v. Williams, Sit. p. Trin. T. owners in such cases. The caution should 
 
 28 Geo. 3. A new trial was moved for in also be extended to those who may be in a 
 
 the following Michaelmas Term, and upon situation to advance money on such occa- 
 
 argument refused. sions, and who should understand that they 
 
 In France, the master of a ship was cannot, by the law of France, have the 
 
 formerly held to possess this power of personal security of the owners of the ship, 
 
 charging the person of his owners for The new doctrine appears to be founded on 
 
 money borrowed for the necessities of the a new construction of that article of the 
 
 ship in the course of a voyage. See Valiu ordinance which declares that the owners 
 
 on the French Ordinance, liv. 2, tit. 1 : shall be responsible for the acts of the 
 
 Du Capitaine, art. 19, tom. 1, p. 413. But master, but shall be discharged onabandon- 
 
 Emerigon, tom. 2, p. 458, &c., cites four ing the ship and freight. — Liv. 2, tit. 8: 
 
 decisions of the courts of his country (two Des Proprietaires, art. 2.] 
 of which were reversals of judgments pro- (l) [Cap. 210.] Scott v. Miller, 5 Sco. 
 
 nounced in the Admiralty of Eochelle), by 14. See Duncan v. Benson, 1 Exch. p. 546 ; 
 
 which the owners were declared not to be 3 Ex. 644; where a merchant, whose goods 
 
 personally responsible, the ship having had been hypothecated by the master of a 
 
 perished on the voyage ; but in each of ship for the expense of repairs, was held 
 
 those cases the master was held liable to entitled to maintain an action against the 
 
 pay the debt; and, in the last of them, it shipowner on an implied promise to indera-
 
 94 master's authority as to repairs, &0. 
 
 Part III. [Another case (a), in which a claim was made upon the owner 
 
 for money advanced to the master abroad in the course of a 
 
 foreign voyage^ underwent a great deal of discussion, and seems 
 worthy of particular notice. Sir Humphrey Jervis, who lived in 
 Dublin, being sole owner of a ship lying at Bristol, under the 
 command of S. Symons, and originally intended to be freighted 
 from thence to Ireland, being disappointed in that voyage, and 
 informed by Symons that a freight could be got for the "West 
 Indies, if he approved of it, wrote to Symons to accept such fi'eight, 
 and to take up as much money upon bottomry as would fit out 
 the ship, and provide a stock for port-charges. Symons thereupon 
 entered into a charter-party with Gary, a merchant at Bristol, 
 for the hire of the ship for a voyage to the West Indies and back 
 to Bristol : and, by the terms of the charter-party, the owner was 
 to pay the seamen's wages, and provide all necessaries for the ship. 
 But SymonSj not being in cash for this purpose, borrowed 200/. upon 
 bottomry of Gary, and also obtained a letter of credit from him to his 
 correspondents in Jamaica for whatever money he might further want, 
 either to repair the ship, or furnish her with pro\dsions, or to pay the 
 seamen's wages. The ship proceeded to Jamaica, and there Symons, 
 the master, by virtue of Gary's letter of credit, took up several sums, 
 amounting to 789/. On the return from Jamaica to Bristol, the ship 
 was lost. Sir Humphrey Jervis refused to pay Gary the 789/., and 
 Gary thereupon sued him for the recovery of it in the Gourt of 
 Ghancery in Ireland, alleging that the money was expended in repairs 
 and other necessary purposes ; and, he dying during the suit, the 
 proceedings were revived and carried on against his administaators. 
 The Lord Ghancellor of Ireland, assisted by one of the chief justices 
 and another judge, at first decreed that Gary should recover so much 
 of the money claimed as upon a trial at law should be found to have 
 been thus expended ; but the cause was afterwards reheard, and the 
 court declared that Gary was not entitled to any relief. Upon this 
 Gary appealed to the British House of Lords, before whom the 
 cause was heard. On behalf of Gary it was argued, ^^That at common 
 law, whatever is done by a servant which is for the benefit of his 
 master, and within the trtist and duty of his place, binds the master 
 as if done by himself; and in a voyage, the master of a ship is the 
 owner's servant, whose duty requires him to provide necessaries for 
 the ship, it being the owner's interest that they should be provided — 
 so that, whatever the master necessarily takes up and employs for that 
 purpose, the owner is bound to pay; and that, by the custom of 
 merchants, if the master be supplied with necessaries for the ship by 
 the order or credit of any freighter, the owner is liable to pay such 
 freighter — and on that ground it is customary for freighters to furnish 
 masters of the ships they take to freight with letters of credit for] 
 
 nify him. See Sallett v. Wig ram, 19 {a) \_Carif v. White, 1 Bro. Par. Cases, 
 
 L. J. C. P. 281,9 C. B. 580; Benson x. 284., A. d. 1710.] Mackintosh v. Mitcheson, 
 
 Chapman, 6 M. & G. 792; 5 C. B. 330; 4 Exch. 175. 
 8 C. B. 950.
 
 2. OWNERS LIABILITY FOE NECESSARIES. 95 
 
 [whatever money they may happen to want^ for tlic necessary service Chap. 3. 
 
 of the ship.'^ 
 
 On the other side it was contended, '^ That it would be of most 
 dangerous consequence for the master of a ship to charge the person 
 or estate of his owner with what money he should take up on pretence 
 of providing for the ship, witliout an express power or authority for 
 that purpose ; for that the law of mercliants liad never carried it fur- 
 ther than to invest the master with a power of mortgaging or charg- 
 ing the ship or cargo "with such money. That in the present case the 
 money could not be laid out by the appellant, or his factors, upon the 
 credit of Sir Humphrey Jcrvis, not only because he was a total stranger 
 to them, but principally because he had for two years before failed in 
 his circumstances, and lost his credit ; nor was it even pretended that 
 Sir Humphrey ever gave any authority to the master to take up 
 money otherwise than on bottomry. That if Sir Humphrey's person 
 or estate was in all events liable to make good this 789/., besides the 
 200/. advanced on the bottomry bond, and which, in case the ship had 
 returned safe to Bristol, he Avould have been answerable for, he must 
 of necessity have been a very great loser, as the ship cost at first but 
 700/., and her freight in that event would not have brought above 
 600/. ; and therefore, if Sir Humphrey himself had been at Jamaica, 
 he never would have consented to take up money for preserving that 
 which would have been so much to his loss. And that the appellant's 
 interest in the ship, by having 200/. on bottomry, at a large interest, 
 to be paid on her return, was much greater than Sir Humphrey's; 
 and therefore, Avhatever money was laid out in Jamaica ought to be 
 considered as laid out on the account of the appellant, but yet to be 
 discounted out of the ship and freight, so far as it would extend, ou 
 its return," The House of Lords thought the owner personally 
 responsible if the alleyntions of Cary, as to the necessity of the expen- 
 diture loere true ; and directed a trial by jury in the Court of Common 
 Pleas in Ireland, to ascertain whether any and what sums of money 
 were necessarily laid out by, or by the order of Cary, for the payment 
 of seamen's wages, provisions, or otherwise, for the necessary 
 repairs and use of the ship during the voyage, and decreed those sums 
 to be paid to Cary, and directed the Lord Chancellor of Ireland to 
 order the necessary steps for the trial of the cause. The cause [b) 
 was accordingly tried at the bar of the Court of Common Pleas in 
 Ireland, and the jury declared by their verdict, that nothing had been 
 necessarily expended for these purposes by, or by the order of Cary. 
 Cary applied to the Lord Chaxcellor, who ordered a second trial, 
 and the cause was again tried at the bar of the Court of Common 
 Pleas in Ireland, before another jury, who gave the same verdict, and 
 the Lord Chancellor thereupon dismissed Cary's suit with costs 
 from the time of the judgment of the House of Lords. Upon this,] 
 
 (6) [The subsequent proceedings are not Journals of the House, 1st of June, 1717. 
 
 mentioned by Brown. This account of The account of the evidence given at the 
 
 them is taken from the printed cases trials contains nothing of general interest.] 
 delivered to the House of Lords, and the
 
 96 master's authority as to repairs, &c. 
 
 Part III. [Gary again appealed to tlie House of Lords ; but^ no person appear- 
 
 ing before tlie House to support liis appeal at the day appointed,, the 
 
 House dismissed it with costs. 
 
 This case, while it establishes the principle of the personal respon- 
 sibility of the owners, shows also that the creditor is required to prove 
 the actual existence of the necessity of those things which give rise to 
 his demand. The authority of the master is to pro"\dde necessaries ; 
 if, therefore, a person trusts him for a thing not necessary, he trusts 
 him for that which it is not within the scope of his authority to pro- 
 vide, and consequently has no right to call upon his principal for 
 payment. In the words of Lord Ellenborough, '^ The money sup- 
 plied must not be understood of an indefinite supply of cash, which the 
 master may dissipate, but only such as is warranted by the exigency 
 of the case, as for the payment of duties or other necessary pur- 
 poses " [a] .] And it must be advanced to the master expressly for the 
 use of the ship ; otherwise, although expended for that purpose, the 
 owner will not be responsible for it to the lender [b). 
 
 [From what has been said, it follows, that if the master expend 
 money of his own for these purposes, he has a right to call upon the 
 owners to repay him [c) . 
 
 In an action against the owner for money advanced in England to 
 the master, the following circumstances appeared on the trial. The 
 ship, after an absence of four years and a half, during which she had 
 been engaged in his Majesty^s transport service, was in the port of 
 Portsmouth, upon her release from quarantine. Having received 
 orders from the transport board to proceed to Deptford, the master 
 borroAved the money in question to pay seamen's wages, Portsmouth 
 being a port of discharge, and to pay tradesmen's bills for articles 
 supplied for the use of the ship there. On the trial the plaintiff was 
 nonsuited, but finally the Com-t of Exchequer set aside the nonsuit, 
 and ordered a verdict to be entered for the plaintiff for such sum as 
 should, on a reference, be found due for the seamen's wages {d) .] 
 
 This case, it will be observed, was decided upon the same prin- 
 ciples as those we have just considered. Tlie money borrowed by the 
 master to pay the seamen's wages was, in the strictest sense, neces- 
 sarij to the prosecution of the voyage. Without it, the seamen might 
 have refused to assist in the further navigation of the ship, and the 
 master therefore was in a situation which enabled him to pledge the 
 owner's credit. So also it may in some cases be necessary to pay 
 harbour dues or pilotage, buy provisions, and the like, and to pay for 
 them in ready money ; and if that he the case, the master's general 
 authority will enable him to procure money by loan, and to bind his 
 
 («) Eocher v. Busker, 1 Staikie 27. See See, as to tlie incidental authority of masters 
 
 Farmer v. Gooch, 2 Starkie, 428 ; Soi/ce v. of ships, as resulting from their official 
 
 Att.- General, 50, capacity, the " Commentaries on the Law 
 
 (b) Thacker v. Moaies, 1 M, & Roh. 79. of Agency, as a breach of commercial and 
 
 (c) Eoecus, Not. 34, 35. maritime jurisprudence," by Judge Stoet, 
 (rf) IRohinson v. Lyall, 7 Price, 592.] pp. 91—97.
 
 2. owner's liabilities foe necessaries. 97 
 
 owner hy a contract for that purpose (e). But -where the master had Chap. 3. 
 
 pledged his owuer^s credit for the maintenance of, and medicine for ■ 
 
 seamen disabled by accident, and whom he left at an inn, having 
 engaged other seamen to perform their duty, it -sras held that the 
 owners were not liable (/). 
 
 In the case oi Arthur v. Barton (g), the master of a coasting vessel 
 being at Cardiff, in Glamorganshire, borrowed money for the neces- 
 sary use of the ship. His owners resided in North "Wales; and the 
 question was, whether they were liable on the master's contract for 
 the money advanced to hira. The case was tried before Mr. Justice 
 Patteson, and that learned judge directed the jury, " that to justify 
 the master in borrowing, it was not necessary that the occasion should 
 arise in a foreign country, but that the case must be one of pressing 
 necessity, when the master and owner cannot communicate without 
 great prejudice and delay /^ leaving to them to say whether, in the 
 circumstances of that case, such pressing necessity and such difficulty 
 of communication had occurred. The Court of Exchequer confirmed 
 this direction, and thought the question one of fact, which the learned 
 judge had properly left to the jury. 
 
 " Under the general authority,''' said Lord Abixger, delivering the 
 judgment of the court, "^ which the master of a ship has, he may make 
 contracts, and do all things necessary for the due and proper prose- 
 cution of the voyage in which the ship is engaged. But this autho- 
 rity does not usually extend to cases where the owner can himself 
 personally interfere, as in the home port, or in a port in which he has 
 beforehand appointed an agent (A), Avho can personally interfere to do 
 the things required. Therefore, 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 if the vessel be in a foreign port, where the owner 
 has no agent, or if in an English port, but at a distance from the 
 owner's residence, and provisions or other things require to be pro- 
 vided promptly, then the occasion authorizes the master to pledge the 
 credit of his owner." 
 
 Of the doctrine thus laid down by Mr. Justice Patteson, the Court 
 of Queen's Bench, in two later cases [i) , expressed its approval. 
 
 Stronger circumstances may be required in some of these cases than 
 in others to establish the fact of the necessity upon which the liability 
 of the owner must depend, but they are all referable to one general 
 principle. 
 
 (e) Arthur v. Barton, G M. & W. 188; ledge of the person making the advances at 
 
 Edwards v. Havill, 1-i C. B. 107. a foreign port, the owner of a vessel has a 
 
 (/) Organ v. Brodie, 10 Ex. 449. recognized agent there, the hottorary bond 
 
 {g) 6 M. & W. 188; and see^o*^, p. 103, given there for such advances, will be held 
 
 the cases as to the meaning of the word by the Court of Admiralty to be void. The 
 
 necessaries in the 3 & 4 Vict. c. 66, s. 6. Faithful, 31 L. J. Ad. 81. 
 
 {h) Gunn v. Roherts, 43 L. J. C. P. 233. (i) Johns v. Simons, 2 Q. B. 424. Slone- 
 
 If within the possible and probable know- house v. Gent, ibid. 431.
 
 98 master's authoeitt as to repaies, &0. 
 
 Part III. " The only distinction/^ said Dr. Lushington (in a case against a 
 
 foreign ship,' proceeded against under the 3 & 4 Vict. c. 65, for the 
 
 price of an anchor and cable supplied to it in England) (a),_ " between 
 the advance of necessaries and of moneys is, that though in both the 
 onus probandi is the same, there is, wisely and properly, a difference 
 in the extent of proof required. I cannot find any case in our own 
 law which does not require that the proof that the articles furnished 
 were necessary should come from the plaintifP, to the extent of show- 
 ing that they were what a reasonable and prudent owner would have 
 ordered. The only case I can find, in which to a certain extent a 
 contrary doctrine has been laid down, is in the Admiralty Court, in 
 Scotland, during the time that jurisdiction existed. It is the case of 
 Cragie v. OgUveij and Izzett, in 1807, in which a cable had been 
 furnished to a Norwegian vessel by order of the master, and the 
 defence was, that no cable was necessary. The judge recognised a 
 distinction between the furnishing of stores and the loan of money, 
 holding it requisite, in the latter case only, to look to the necessity; 
 he also recognised a distinction between articles of ordinary use and 
 necessity to the vessel's safety and articles manifestly superfluous; 
 and he repelled the defences, reserving all questions between the owner 
 .and shipmaster. This case would make a distinction between money 
 and other articles, but it is wholly unsupported by any avithority in 
 England. I think, in the case of an anchor and cable, less evidence 
 might suffice to prove the necessity in the legal sense of the term, 
 than in respect to other articles ; but still there must be some evidence, 
 and I think that the doctrine which casts the onus probandi on the 
 tradesman or material man who provided the articles is founded on 
 great and important principles, and that the rule is wisely framed to 
 prevent great abuses. To charge one man for the acts and dealings 
 of another is prima facie contrary to natural law ; but when it 
 appeared 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 requiring 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.'' 
 
 The same learned judge, in another case, was clearly of opinion that 
 the master of a vessel belonging to Newcastle could not bind his 
 owners for money borrowed by him at Cowes to repair his ship, there 
 being no proof of pressing necessity or difficulty of communication (6). 
 He has authority to borrow money only in cases where ready money 
 is necessary — that is to say, where payments must be made in the 
 course of the voyage, for which ready money is required ; and not 
 even then, if the owner of the vessel is living so near as to be 
 
 («) The Alexander, 1 Wm. Eob. 361, in Williamson v. Page, 1 Car. & K. 581 ; 
 
 and the Sophie, p. 369. The judgment of and Mackintosh v. Mitcheson, 4 Exch. 
 
 Dr. LusHiyGTON contains an elaborate 175. 
 
 review of all the cases upon this subject. {b) The Lochiel, 2 "Wm. Eob. Adm. Eep. 
 
 And see the observations of Cbesswell, J., 45.
 
 3. CHABGES OX SHIP IX SPECIE, &C. 
 
 99 
 
 conveniently communicated with ; and lie cannot borrow money- 
 after the work has been done for the purpose of paying the debt due 
 for it (c) . 
 
 But although it be obligatory on the tradesman or material man, 
 who would seek to make the owner of a ship liable for repairs done, 
 or supplies furnished on the order of the master, to give some proof 
 of the existence at the time of that legal necessity which has been 
 above defined, it must not be understood that he is required to decide 
 on the expediency, under the circumstances, of ordering what he 
 believes to be necessary to enable the ship to complete her voyage. 
 Such expediency may depend on the value of the cargo, and on many 
 complicated considerations, of whicli it is the master's duty to judge, 
 and of which the tradesman can seldom have the means of forming an 
 opinion [d]. 
 
 Chap. 3. 
 
 3. Of Charges on the Ship in Specie. Repairs done in England 
 not 2irivileged as in the Civil and Maritime Law. Lien of 
 Shipwright. 
 
 [Every man who had repaired or fitted out a ship, or lent money 
 to be employed in those services, had by the law of Home {e), and 
 still possesses in those nations which have adopted the civil law as the 
 basis of their jurisprudence, a privilege, or right of payment in prefer-] 
 
 (c) Behlon v. Campbell, 6 Exch. 886. 
 Gosfahrick, Swab. Adm. R. 344. Perla, 
 ibid. 353. West Friesland, ibid. 45i. The 
 India, 32 L. J. Ad. 185. 
 
 (d) The VihiUa, 1 Win. Rob. Rep. 1. 
 
 (e) [Dig. 42, 5, 26 : " Qui in navem ex- 
 tniendam vel insfruetidam, credidit, vel 
 etiam emendam, jirivilegium hahet." And 
 id. 1, 34 : " Quod quis navis fahricandcB 
 vel emendte vel armandce, vel inslniendcB 
 causa, vel quoqiio modo, credident, vel ob 
 navem vendifam petal, habet privilegium 
 post fiscum." See also Dig. 20, 4, 5, and 
 6; Novell, 97, c. 3; Domat's Civil Law, 
 book 3, tit. 1, sect. 5 ; and Viiniius in 
 Peckium, pp. 99, 233.] In most of the 
 countries governed by the civil law, repairs 
 and necessaries form a lien on the ship 
 itself. In England, the same doctrine for 
 a long time prevailed in the maritime courts 
 (1 Hagg. Rep. 320, 325 ; 1 Roll. Abr. 533, 
 Cro. Car. 296), 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. Tlie submis- 
 sion of the Courts of Admiralty seems, 
 however, to have been limited to the very 
 letter of the prohibition ; for, in one case, 
 it appeared that the practice of paying 
 material men out of the proceeds in the 
 
 registry, arising from the sale of a ship 
 under process of that court, had existed for 
 more than half a century (the Neptune, 
 3 Hagg. Rep. 129). " This practice," said 
 a learned .ludge of the Admiralty (Sir 
 John Xichol), " founded on principle, 
 on the law civil and maritime, on tlie 
 usage of other nations, and on the ancient 
 practice of this court ; unchecked by pro- 
 hibitions, except in the case of proceedings 
 against the ship itself — tliis practice, so 
 founded and so allowed to grow up, I shall 
 not disturb;" and he accordingly pro- 
 nounced for the claim of the material men, 
 with costs of suit, and that the same should 
 be paid out of tlie registry. But this deci- 
 sion was reversed on the appeal of a mort- 
 gagee by the Judicial Committee of the 
 Privy Council (2 Knapp's Cases, 94), and 
 the law, therefore, as stated in the text, 
 may be considered as finally established. 
 
 In the Admiralty Courts of the United 
 States, the rule of the civil law has been 
 generally followed as to foreign ships, and 
 in some of the states, as to repairs in do- 
 mestic ports. In the case of the General 
 Smith (4 Wheaton, Rep. 438), the Supreme 
 Court of the United States held, that where 
 repairs have been made, or necessaries fur- 
 nished to a foreign ship, or to a ship in a 
 port of a state to which she does not belong, 
 3
 
 100 
 
 master's authority as to repairs, &0. 
 
 Part III. [ence to other creditors, upon the value of the ship itself, without any 
 
 instrument of hypothecation,, or any express contract or agreement, 
 
 subjecting the ship to such a clrim [a] . This privilege exists in France 
 not only -while the ship remains in possession of the owner, but even 
 after a sale to a third person Tor some period of time {b) ,] But it 
 seems now to be decided that in England a person supplying neces- 
 saries for a ship has no maritime lien on it for the price of same (c). 
 [A shipwright, indeed, who has taken a ship into his own possession to 
 repair it, may not be bound to part with the possession until he is 
 paid for the repairs, any more than a tailor, smith, or other artificer, 
 in regard to the object of bis particular trade (d), unless there be a] 
 
 the general maritime law, following the 
 civil law, gives the party a lieu 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 belongs, the case is governed 
 altogether by the miinicipal law of that 
 state, and no lien is implied unless it be 
 recognised by that law ; and, accordingly, 
 the court decided it in that case, because the 
 common law, which was the law of Mary- 
 land where the repairs were made, did not 
 give it for repairs on a domestic ship. 
 
 The legislature of Xew York and Penn- 
 sylvania have specially provided for mate- 
 rial meu, ship\\Tights, and artificers, a lien 
 on the ships furnished or repaired by them ; 
 and in Louisiana, a like lien or privilege 
 exists in virtue of the general Spanish Law. 
 — See Judge Stoet's note to the first 
 American edition, p. 115. 
 
 " The statute laws of the states generally 
 give a lien to mechanics or others on build- 
 ings for labour bestowed and materials fur- 
 nished in the erection of them. In Ohio 
 the purchaser of a steamboat, with notice 
 of a debt created on account of it by the 
 original owner, takes the boat subject to 
 such debt. The legislation of the several 
 states exhibits a progressive inclination to 
 extend the right of lien for the security of 
 the claims of mechanics and labourers. 
 It is extended to vessels in Vermont." Note 
 to Kent's Commentaries, (ed. 1858,) vol. 2, 
 635. — Mr. Justice Shee. 
 
 (a) [See particular regulations on this 
 suhject, in the Fi'ench Ordinance, liv. 1, 
 tit. 14 : De la saisie et vente des vaisseaux,] 
 Code de Commerce, art. 190. 
 
 (6) [It seems to be a year. French Or- 
 dinance, liv. 1, tit. 12 ; Des prescriptions, 
 &c., art. 3.] The master of a British vessel 
 in Australia drew a bill of exchange on C, 
 the owner, for necessaries supplied to the 
 vessel. The owner declined to accept the 
 bill. The ship being afterwards at Havre 
 the holder of the bill indorsed it to T. & Co., 
 French subjects at IIa^Te, who commenced 
 
 a suit for the amount there against the 
 master and against the ship, and obtained a 
 condemnation on the master with a pri- 
 vilege on the ship, which was seized by the 
 court. No notice of this suit was given to 
 C. To obtain an order for sale of the ship 
 it was necessary for T. & Co., to get the 
 judgment of a superior court, and to summon 
 before the court all those who appeared to 
 be owners of the vessel. Dm-ing the 
 voyage C. had mortgaged the ship to H., 
 and this mortgage was transferred to the 
 plaintiff. C. who had afterwards become 
 bankrupt, and his assignees were then sum- 
 moned to appear in the French Court, but 
 did not. No notice of the French proceed- 
 ings was given to H. or to the plaintiff. 
 Judgment was given by the French Court 
 by default, confirming the judgment below, 
 and decreeing a sale of the ship. The 
 plaintiff after that commenced a suit at 
 Havre to replevy the ship, and judgment 
 was given against him on the mistaken 
 view of the law of England that it was 
 impossible that, by that law, a transfer of 
 the property in a ship could take place in 
 the course of a voyage, to the prejudice of 
 creditors, or without the transaction being 
 indorsed on the certificate of registry or the 
 ship's papers. This decision was affirmed 
 on appeal, and the ship was sold to the 
 defendant. The plaintiff brought trover 
 for the ship : — Held, that he was not 
 entitled to recover, as the proceedings in the 
 French Courts were proceedings in rem, and 
 that the right of property in the ship passed 
 by the sale under the French decree. Cas- 
 trique v. Imrie, 30 L. J. C. P. 177 ; L. R. 4 
 H. L. 414. Simj)son v. Foc/o, 29 L. J, Ch. 
 657. Cammell v. Seioell, 29 L. J. Exch. 
 350; 3H. &N. 617. 
 
 (c) Westerdale v. Dale, 7 Term. Rep. 
 312. Rich V. Coe, Cowp. 636. Farmer v. 
 Davies, 1 Term Rep. 108. As to suing in 
 rem for necessaries, see post, p. 103. 
 
 ((f) [Bland, ex parte, 2 Rose, 91; 
 Franklin v. Hosier, 4 B. & A. 341.] Buxton 
 V. Snee, 1 Yes. sen. 154. The Harmonie, 
 1 Rob. 178.
 
 3. CHARGES ON SHIP IN SPECIE, &C. 101 
 
 [special agreement to give credit for a certain period, or such an usage Cliap. 3. 
 
 in the trade as is equivalent to a special agreement (e) . But a ship- 
 
 wriglit who has once parted with the possession of the ship, or has 
 ■worked upon it without taking possession, and a tradesman who has 
 provided ropes, sails, provisions, or other necessaries for a ship, are 
 not by the law of England preferred to other creditors, nor have any- 
 particular claim or lien upon the ship itself for the recovery of their 
 demands (/). Thus, where ouc Clement (g), who had supplied sails 
 and other necessaries for the use of a ship in a port in England, 
 instituted a suit in the Court of Admiralty against the persons who 
 were master and owner at the time of the supply, and also against 
 the ship, and one Hoare, who had afterwards purchased the ship, the 
 Court of King^s Bench, on the application of Iloare, granted a pro- 
 hibition to the Court of Admiralty to stay the proceedings against 
 hira and the ship. 
 
 In another case, where a person, having repaired a ship here, and 
 delivered it to his employer, Avho was become bankrupt, had obtained 
 possession of the money for which the ship had been sold, and insisted 
 before Lord Chaiicclhjr Hardwicke, that he had a specific lien on 
 the ship for the repairs, and was not obliged to prove his demand as a 
 debt under the commission — the Lord Chancellor said, '' That 
 although the law of Holland gave a person who repaired a house, or 
 ship, a specific lien, there was no such law in England, and that he 
 must account to the assignees of the bankrupt for the money in his 
 hands arising from the sale of the ship, and come in under the com- 
 mission for the debt due to him for repairs ; " and his lordship made 
 an order accordingly (A) . 
 
 In a case (i) which was brought by appeal from the Court of 
 Session in Scotland to the British House of Lords, the lords deter- 
 mined that the persons who had repaired and furnished a ship in 
 Scotland, the place of the owner's residence, had no claim upon the 
 value of the ship itself for the payment of their demands. The 
 owners of the ship had become bankrupts, and several persons who 
 had repaired and furnished it at different periods instituted a suit 
 against the trustee of the bankrupts' estate, claiming payment out of 
 the proceeds of the sale of the ship in exclusion of the other creditors 
 of the bankrupts, and insisting that all of them, or at least those 
 whose demands arose since the last voyage made by the ship, and in 
 order to fit her out for another voyage, had, by the law of Scotland,] 
 
 (e) Saitt V. Mitchell and another, 4 Salkett, 3 Yes. & B. 135. S. C. 9 East, 
 
 Camp. 146. 426. Buxton v. Snee, 1 Vez. 154. 
 
 (fj ScQ mil, ex parte, iM&AAocks, 61. (h) Ex parte Shank, 1 Atkins, 234. 
 
 (ff) Soare v. Clement, 2 Show. 338. See Willcins v. Carmichael, Doug. 101. Smith 
 
 Cradock's case, 2 Brownlow, 37, Owen, v. Flummer, 1 B. & A. 575. Hawkins v. 
 
 122, by the name of Leigh v. Burleigh. Twizell, 5 E. & B. 883. 
 
 Justin V. Ballam Salk. 34; 2 Ld. Raym. (/) ^Wood v. Hamilton, decided in Dom. 
 
 805. Watkinson v. Barnardiston, 2 P. Proc, loth of June, 1789. The printed 
 
 Wms. 367 ; 2 Eq. Ca. Ah. 512, A. D. 172G. papers are drawn up with great care and 
 
 iroodw Creditors of Weir, 1 Bell's Comni. learning on both sides, and contain much 
 
 529. See Hussey v. Christie, 13 Yes. jun. valuable information.] 
 594; 3 Swanston, Rep. 139; Ex parte
 
 102 master's authoeity as to eepaies, &0. 
 
 Part III. [^^^ of other European nations, England only excepted, a right of 
 
 hypothecation or preference for the amount of their respective 
 
 demands. The cause was heard and re-heard several times in Scot- 
 land, and different decisions pronounced there, some in favour of the 
 claim, and others against it. The ultimate decision in Scotland was 
 against the claim, founded principally, as it seems, upon a desire to 
 render the law of Scotland confoi'mable to the law of England on this 
 subject (a) ; for such a claim had been frequently allowed in the 
 courts of Scotland during a period of fourscore years preceding this 
 cause ; and this decision was affirmed by the House of Lords on the 
 appeal] . 
 
 A person who has supplied in this country necessaries to a British 
 colonial ship, has not a maritime lien against the ship. The plaintiffs, 
 without the knowledge or sanction of the mortgagees, supplied neces- 
 saries to a vessel which was then mortgaged : held, that the mortgage 
 must take precedence of the claim for necessaries [b] . 
 
 The master of a ship has a lien in equity as against mortgagees on 
 a ship or its freight, to recoup himself expenses necessarily incurred 
 for the purpose of fulfilling a contract by charter-party, entered into 
 by him, and under which the freight became payable [c] . 
 
 4. The Doctrine and Jurisdiction of the Court of Admiralty — 
 3^4 Vict. c. 65 ; 24 4> 25 Vict. c. 10 {d). 
 
 [There is, however, a determination of the Court of Admiralty 
 that should be mentioned in this place. An American ship was 
 supplied in the river Thames, by certain merchants of London, with 
 stores and ammunition for a voyage to Venice ; and having performed 
 the voyage and returned to London, was sold under a decree of the 
 court, in a suit instituted by the mariners for their wages. After 
 payment of the wages, a surplus remained in the registry of the 
 court. The master had returned to America and died ; and the 
 owner was insolvent there. The merchants applied to the court for 
 payment of their demand out of this surplus ; and in support of their 
 application a distinction was taken between English and foreign 
 ships. The learned judge of the court, after having had the cases 
 looked into, said he found it had continued to be the practice of 
 the court to allow persons of this description to sue against pro- 
 ceeds remaining in the registry, notwithstanding prohibitions had] 
 
 (ff) llntheciiseo{ Jamiesoii and otJiersx. (c) Brktoio v. JFTiitmore, 28 L, J. Ch. 
 
 Laurie, 6 Bro. P. C. p. 474, 2nd edit., this 801 ; 31 L. J. Ch. 467 ; the Feronia, 37 
 
 is expi-essly said to have been the ground of L. J. Ad. 60. 
 
 the decision. Dr. Wynne's opinion as to (d) The Court of Admiralty has not 
 the English law was taken in the course of jurisdiction in an action in rem for neces- 
 tlie proceedings for the information of the saries, except where it lias been given ex- 
 Scotch judges.] pressly by statute. The Pacific, 33 L. J. 
 
 (b) The Two Miens, 40 L. J. Ad. 11. Ad. 120. 
 As to suing in rem for necessaries supplied 
 to a ship, see post, p. 104.
 
 4. JUEISDICTION OP COUET OF ADMIRALTY. 103 
 
 [been obtained on original suits instituted by them ; and he refen'ed Chap. 3. 
 
 to a particular case of the ship Adventure, in the year 1763^ and 
 
 decreed that payment should be made according to the applica- 
 tion (e). 
 
 It is observable that there "was not in this case any person repre- 
 senting the owner to object to the application. It appears by the 
 report that the proceeds had been previously attached on the part of 
 a creditor^ and that the attachment had been removed before the 
 decree, but no particulars relating to it are mentioned.] 
 
 With respect to foreign (/) ships, it is now, by the 6th section of Necessaries 
 3 & 4 Vict. c. 65, enacted, that the High Court of Admiralty shall supplied to 
 have jurisdiction to decide all claims and demands whatsoever for °^'®'&^ ^'"P^* 
 necessaries supplied to any foreign ship or sea-going vessel, and to 
 enforce the payment thereof, whether such ship or vessel may have 
 been within the body of a county, or upon the high seas, at the time 
 when the necessaries were furnished, in respect of which such claim 
 is made. 
 
 The Court of Admiralty, the owners not opposing, has given effect 
 to this section, directing payment out of proceeds in the registry, of 
 the full amount of a claim for necessary moneys advanced to a foreign 
 ship, partly " within the body of a county,^^ and partly in a Scotch 
 port out of its jurisdiction — with a protest however, that but for the 
 shipowner's not appearing to protect his interest — there would have 
 been considerable difficulty in making the order {g) . 
 
 In determining what are necessaries Avithiu the statute, that word 
 will be liberally construed. It is not limited to things absolutely and 
 unconditionally requisite for a ship in order to her putting to sea(/i). 
 Butchers' meat (e), anchors and cables {k), sails and copper sheath- 
 ing (/), coals supplied at intervals to a foreign steamer for several 
 voyages {m), have been considered necessaries, and the person supply- 
 ing them has been thought entitled to sue in rem after the dishonour 
 of a bill given to him in payment for them {n). Money paid by the 
 acceptors of a bill drawn by the master of a foreign ship abroad, to 
 procure necessaries, has been held recoverable against the ship (o) . 
 
 (e) [The .7oAHJbc^50)j, 3 Rob. A. E.. 288.] the Ella A. Clarice, .32 L. J. Ad. 211; 
 
 See Duncan v. M'Cahnont, 3 Beav. 409; Br. & Lush, 32; the Wataja, Swab. 165; 
 
 Castelli V. Cool; 7 Hare, 92. It seems the Ocean, 2 W. Rob. 388; the Perla, 
 
 that such a decree would not now be made. Swab. 353. As to the diflerence between 
 
 See the Neptune, 3 Knapp. 94. a maritime lien and a right to the res as 
 
 (/) A vessel built and registered at New a security, see the Pacific, 33 L. J. Ad. 
 
 Brunswick, and owned by a firm in Nova 120, post. 
 
 Scotia, has been held not to be a foreign (A) The Perla, Swab. 353 ; the Comtesse 
 
 sea-going vessel within this Act. Ihe Ocean de Fregeville, 1 Lush. 329; the Riga, 
 
 Queen, 1 W. Rob. 457. A colonial is not a L. R. 3 Ad. 516; 41 L. J. Ad. 39; the 
 
 foreign ship ; the Wataja, Swab. 165. To Anna, 45 L. J. Ad. 98. 
 
 give the court jurisdiction, the articles (i) The (T0,?/«6m'^, Swab. 344. 
 
 must have been furnished to the foreign [k) The Alexander, 1 W. R. 361; the 
 
 ship within the body of a county, or upon Sophie, ibid. 369. 
 
 the high seas. The Ocean, 2 W.Rob. 368; {l) The Perla, Swab. 353. 
 
 the India, 32 L. J. Ad. 85. (w) The West Friesland, 454. 
 
 (g) The Afina Van Linge, Swab. 514. («) The Gosfabricl; Swab. 344. 
 
 As to this section not giving a maritime (o) The Onni, 1 Lush. 154, where money 
 
 lien see the West Friesland, Swab. 455; was advanced to pay off a bottomry bond, &c.
 
 104 
 
 mastee's authority as to eepairs, &c. 
 
 to which she 
 beloncrs. 
 
 Part III. Tlie above-mentioned provisions of the 3 & 4 Vict. c. 65^ are 
 
 : limited to foreign sliips^ but by the 24 & 25 Vict. c. 10, s. 4, the 
 
 supplied to Court of Admiralty has jurisdiction over any claim for the building, 
 
 ship elsewhere equipping, or repaii'iug of any ship, if at the time of the institution 
 
 than iu port of the causc the ship or the proceeds thereof are under its arrest; 
 
 and by sect. 5 of tliat Act, such court has jurisdiction over any claim 
 
 for necessaries supplied to any ship elsewhere than in the port to 
 
 "which the ship belongs, unless it be shown to the satisfaction of the 
 
 court, that at the time of the institution of the cause any owner or 
 
 part-owner of the ship is domiciled in England or Wales (a) . 
 
 D. J. furnished necessaries to the A., which was subsequently sold 
 to persons who had notice of D. 3/s claim : Held, that D. J. could 
 not after the sale arrest the ship iu an action for necessaries [d] . 
 
 As to a county court\s Admiralty jurisdiction for necessaries, see 
 31 & 32 Vict. c. 71, s. 3. 
 
 County court 
 urisdictiou. 
 
 Nature of 
 contract by 
 bottomry. 
 
 5. In Foreign Ports the Master may hypothecate the Ship, but not 
 generally at the Residence of his Owners. Of Contracts by 
 Bottomry. 
 
 [We have seen by several of the preceding cases that the master 
 may, in foreign parts, hypothecate the ship ; and I propose, in the 
 next place, to consider the nature of those instruments of contract by 
 which a ship itself is expressly made security, and pledged by the 
 master for the repayment of a debt contracted with relation to it. It 
 should be observed, that wherever the master may pledge the ship, he 
 may pledge the freight also (c). 
 
 These contracts are usually called contracts by bottomry, the 
 bottom or keel of the ship being figuratively used to express the 
 whole body thereof; sometimes also, but inaccurately, money lent in 
 this manner is said to run at respondentia ; for that word properly 
 applies to the loan of money upon merchandise laden on board a ship, 
 the repayment whereof is made to depend upon the safe arrival of the 
 merchandise at the destined port. In like manner, the repayment of 
 money lent on bottomry does in general depend upon the prosperous 
 conclusion of tlie voyage ; and as the lender sustains the hazard of] 
 
 The Comtesse de •Fregcville, 1 [Lush. 329, 
 where money was clue on a balance of 
 account, part being for necessaries. The 
 IFaiaJa, Swab. 165. 
 
 («) By sect. 5 it is provided, that if iu 
 any such cause the plaintiff do not recover 
 201., he shall not be entitled to any costs, 
 charges, or expenses incurred by him there- 
 in, unless the judge shall certify that the 
 cause was a tit one to be tried in the said 
 court. See 0. 55 of Judicatiu-e Act, 1875 
 
 (6) The Aneroid, 47 L. J. Ad. 15. 
 
 (c) [The Grcditudine, Mazzola, 3 Eob. 
 A. E. 240, and the Jacob, 4 Eob. A. E. 245. 
 
 See as to the extent of an hypothecation of 
 the freight, the 10th section of this chapter.] 
 See also the Pcrci/, 3 Hagg. 418, in which 
 case a monition to bring in freight was 
 refused to the mortgagee of a ship, the 
 ship having been sold to defray a bottomry 
 bond seciu-ed upon ship and freight, and 
 wari'ant of arrest had been served upon the 
 freight at the suit of the bondholders, and 
 there were owners before the court. Held 
 also, that the mortgagee could not bar pay- 
 ment of the bond out of tbe proceeds of the 
 ship until the freight was in the registry.
 
 5. HYPOTHECATING SHIP. 105 
 
 [the voyage, he receives, upon its happy terminatiou, a greater price Chap. 3. 
 
 or premium for his money than in ordinary cases. The premium 
 
 paid on these occasions depends wholly on the contract of the parties, 
 and consequently varies according to the nature of the adventure ; 
 and as the master of the ship may, under certain circumstances, 
 pledge the ship hy a bottomry contract, so also may the owners {d) 
 or part-owners, in any case, to the extent of their respective interests ; 
 and this they not unfrequently do, in order to raise money for the 
 outfit, when prudence dictates the propriety of such a measure, or the 
 want of personal credit compels them to have recourse to it. The 
 origin of these contracts is certainly very remote, and cannot now be 
 accurately ascertained. It is said by a very learned writer (e), that 
 they took their rise from the practice of allowing the master to 
 hypothecate the ship in a foreign country, in order to raise money 
 to refit. But this opinion may well be doubted ; for, although the 
 practice of lending money upon maritime risks at a high premium 
 was well known to the Romans before the time of Justiniar, yet in 
 those titles of the Digest and the Code (/) which expressly treat of 
 this subject, no mention is made of contracts of this nature entered 
 into by the mast €7' of a ship in thai charade?', according to the practice 
 which has since universally prevailed. And except for the purpose of 
 securing the payment of maritime interest, actual hypothecation was 
 not necessary to give the creditor a claim upon the ship, as I have 
 already shoAvn. This point, however, is rather a matter of specula- 
 tive curiosity than of useful research, and therefore I shall pursue it 
 no further. 
 
 The consideration of these contracts, when made by the owners or 
 part-owners themselves, docs not properly belong to this place ; their 
 legality, and the risks which Jie lender is to incur, according to general 
 rules, are very ably treated by Mr. Park and Mr. Serjeant Marshall, 
 in their chapters on Bottomiy and Respondentia. I shall only mention 
 such circumstances relating to them as are connected with the subject 
 of hypothecation by uhe master ; premising, however, that a total loss, 
 within the meaning of a bottomry bond, cannot happen if the ship 
 exists in specie, although it may be so much injured in the voyage as 
 not to be worth repairing and bringing to the ultimate place of desti- 
 nation, so as to constitute a total loss within the meaning of a policy 
 of insurance on the shi?i {g). 
 
 The name of bottomry has been sometimes incorrectly applied to a 
 contract, by the terms of which the ship itself is not- pledged as a] 
 
 {d) Potliier, vol. 3, p. 97 ; Enierlgon, (/) [De Nautico Fffiuore : Dig. 22, 2 ; 
 
 875 ; Valin, liv. 3, tit. 5, art. 8 ; Bynker- and Codex, 4, 33. See on this subject, 
 
 shoek, c. 515; Duke of Bedford, 2 Hiigg. Park, ch. 21; Guidon, ch. 18; Emerigon, 
 
 Adam. Rep. 294. As to the consent to a torn. 2, p. 380 ; and stat. 6 Geo. 1, c. 18, 
 
 bottomry bond by a managing pai't-owner s. 12.] 
 
 see the ^o_;/«Z^rc^, Swab. 282. See remarks, (g) {^Thompson, ^. Royal Exchange As- 
 
 post p. 106, as to owners making contracts surance Compani/, 1 M. & S. 31 ;] the 
 
 of this kind in this country before the be- Great Pac'fc, 38 L. J. Ad. 45 ; Broom- 
 
 ginning of a voyage. feld v. SotitJurn Insurance Company, L. R. 
 
 (e) 2 Black. Com. p. 457, c. 30, s. 3. 5 Ex. 192.
 
 106 master's authority as to EEPAIES, &c. 
 
 Part III. [security, but the repayment of money, witli a higli premium for the 
 risk, is made to depend upon the success of a voyage {a) . This is rather 
 a loan upon a particular adventure, to be made by a particular ship, 
 than a loan upon the ship ; and of course the lender has only the per- 
 sonal security of the borrower for the due performance of the 
 contract.] 
 
 With regard, however, to contracts o£ this sort, made by the owners 
 themselves in this country before the beginning of a voyage, by the 
 terms of which the ship is pledged as a security, it should be olDserved, 
 that if the contract relate to a British ship, and purport to be, either 
 a present assignment of the ship, liable to be defeated on repayment 
 of the money due at the end of the voyage, or a future assignment, 
 to take effect only upon failure of such payment, it seems that a com- 
 pliance with the provisions of the Register Acts mentioned in a pre- 
 ceding chapter, is essential to the validity of the contract {b) . 
 
 [Neither does there seem any mode by which a person, who 
 advances money at respondentia upon goods laden and to be laden on 
 board a ship on an outward and homeward voyage, can resort for the 
 payment of his debt to the specific goods that may be brought back (c) . 
 In a case of money lent to the master of an East India ship, who 
 executed a bond in the form [d) commonly used on such occasions, 
 and having taken out goods from this country and sold them in India, 
 and brought back others purchased there with the proceeds of the 
 first, became a bankrupt before he had repaid the loan, and while 
 part of the goods and the money produced by the sale of another 
 part remained in the hands of the East India Company, in whose 
 warehouses they were deposited for sale, according to the rules of 
 that trade ; the Court of Chancery sent the following question for 
 the determination of the Court of King's Bench — viz., " Whether 
 the lender had by law, in respect to the money remaining due to him 
 on the bond, any lien upon or interest in the money or goods remain- 
 ing in the hands of the company, or either of them ; and whether 
 the same, or either of them, were by law liable to satisfy what 
 so remained due ? " The Court of King's Bench determined the 
 question in the negative (e) . It may be observed, that the instru- 
 ment used on this occasion does not contain a direct and formal 
 pledge of the goods. 
 
 A contract of hypothecation made by the master does not transfer 
 the property of the ship, but only gives the creditor a privilege or 
 claim upon it, to be carried into effect by legal process (/) . It is con- 
 trary, therefore, to the nature of hypothecation, admittingthe master's] 
 
 («) Three forms of bonds of this sort are (rf) [See AppendLs.] 
 
 printed in the Appendix to the Treatise of (e) Busk v. Fearon, 4 East, 319. See 
 
 the Domniiou of the Sea, and Body of Sea Glover v. Black, 3 Bun-. 139i. 
 
 Law, p. 659, &c. (/) [See Johnson v. Shippen, 2 Lord 
 
 {h) See the Aline, 1 "W. Rot). 121 ; the Kayiu. 984.] See the judgment of Lord 
 
 Jenny, 2 W. Rob. 5 ; and Ladbroke v. Stowell in the Tohago, 5 Rob. 222, and 
 
 Crickett, 2 Term Rep. 649; Johnson v. of the Court of C. P. in Siainhank \. Fen- 
 
 Shippen, 2 Ld. Ravm. 983 ; per Holt, C. J. ning, 11 C. B. 51. Stainhank v. Shepperd, 
 
 (o) 2 Black. Com. 458. 13 C. B. 418; 22 L. J. Ex. 341.
 
 5. HYPOTHECATING SHIP. 107 
 
 [power to hypothecate the cargo (as will be presently mentioned) {(J), Chap. 3. 
 
 that he should engage to deliver the cargo in the first instance into 
 
 the hands of the lender's appointee, at the place of destination, so as to 
 enable him to sell it and receive the proceeds for the use of the lender, 
 Vv'ithout giving the merchant an opportunity of taking it into his own 
 hands upon discharging the incumbrance : and consequently the 
 master has no power to enter into such an engagement {Ji)\, 
 
 A contract of this sort is one of those matters which are technically 
 called Choses in Action, and therefore, before the Judicature Acts, the 
 duty created by it was 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, in a court of common law ; although such an 
 assignment might have been made available in a court of equity {i) . 
 In the Admiralty, even before the Judicature Acts, a bottomry bond 
 was a negotiable interest, which might be transferred and put in 
 issue by the person so acquiring it (k) . 
 
 [It is obvious that a loan of money upon bottomry, while it relieves Borrowino- 
 the owners from many of the perils of a maritime adventure, deprives money on" 
 them also of a great part of the profits of a successful voyage ; and bottomry at 
 therefore, in the place of the owner's residence, where they may exer- ^ , 
 
 1 . . ^, • p ^ .•'''. owner s 
 
 CISC their own judgment upon the propriety ot borrowing money in reaideuce. 
 this manner, the master of the ship is by the maritime law of all 
 states precluded (Z) from doing it, so as to bind the interest of 
 his owners, without their consent (m) . 
 
 The meaning of the words '' place of residence" {la demeure des 
 proprietaires) has given occasion to some questions in France. With 
 us, I apprehend, the whole of England is considered for this purpose 
 as the residence of an Englishman ; at least, before the commence- 
 ment of a voyage, Ireland has been held to be a foreign country, 
 in the case of an English ship hypothecated by the master there in 
 the course of a voyage {n) . In a case (o) , wherein it appeared that 
 a Spanish ship, on a voyage from Alicant to London, put into Corunna 
 to repair, and that the master, being unknown and without credit, 
 gave a bottomry bond there for money advanced to defray the expenses] 
 
 {g) Post, p. 120. judgment in the Shadamanthe, 1 Dods. 
 
 (A) Johnson v. Greaves, 2 Taunt. 344. 201.] As to Jersey see the Barbara, 4 Eob. 
 
 (i) Marshall v. Wtlso7i; at Guildhall, 1. By 19 & 20 Vict. c. 97, s. 8, "In rela. 
 
 Dec. 18, 1811, before Lord Ellenbobough, tiou to the rights and remedies of per.sous 
 
 Chief Justice. having claims for repairs done to, or sup- 
 
 {k) The Eeheeca, 5 Eob. Adm. Rep. 102. plies furnished to or for, ships, every port 
 
 (/) This is so in general, see the Trident, ^vithin the United Kingdom of Great 
 
 1 W. Rob. Ad. Rep. 29. Britain and Ireland, the Islands of Man, 
 
 (w) [Hauseatic Ordinance, art. 58 ; Han- Guernsey, Jersey, Alderney, and Sark, and 
 
 seatic Ordinance of 1614, tit. 6, art. 1 ; the islands adjacent to any of them, being 
 
 French Ordinance, liv. 2, tit. 1, Du Capi- part of the dominions of Her Majesty, shall 
 
 taine, art. 17, and liv. 3, tit. 5, Des Con- be deemed a home port." And see 19 & 20 
 
 trats a la grosse, art. 8 ; Emerigon, tom. 2, Vict. c. 60, s. 18, the Act for Scotland. 
 p. 424; Molloy, book 2, ch. 11, sect. 14; (o) i« F.?«5eZ,l Dods. 273. The Bahoon, 
 
 Weskett, tit. Bottomry, sects. 20, 23 ; 4 Rob. 1. The Oriental, 7 Moore, P. C. 
 
 Lister v. Baxter, 2 Stra. 695.] 459. The Bonaparte, 8 Moore, P. C. 4o9. 
 
 (h) IMenetone v. Oibbons, 3 Term Rep. See Glascott v. Lang, 2 Phillips, 321 
 
 K. B. 267, query since the Union. See the cargo ex Sultan, Swab. 504.
 
 108 master's authoeity as to repairs, &0. 
 
 Part III. [ — Lord Stowell decided tliat the bond was valid, and in the course 
 
 of his judgment observed, " It was not in the same province of that 
 
 distracted kingdom that tlie transaction took place, nor could the 
 master, under the circumstances in which he was placed, have applied 
 to his owners for assistance •/' and added, " 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 circumstances only, but 
 iipon the extreme difficulty of communication between the master 
 and his owners. The difficulty of communication was, in fact, greater 
 than if the ship had been in a foreign port. If the policy of the 
 law, in allowing this authority to the master to hypothecate his ship 
 and cargo, is founded on the extreme difficulty of communication 
 with his owners, there is no reason for saying that there was not 
 abundance of difficulty to authorize him to do so in the present 
 instance.'^] 
 
 It is the duty of the master or bondholder, wherever it is reason- 
 ably practicable, to communicate with the owners of ship and 
 cargo before the master hypothecates them {a) . Until an owner has 
 been judicially declared insolvent he is entitled to such notice; if 
 an owner has been judicially declared insolvent the assignees are 
 entitled to notice [b) . To render valid a bottomry bond where com- 
 munication is practicable between the port of distress and the OAvner, 
 it is not sufficient that the owner should be made aware of the disaster 
 Avhich has happened to the ship ; he should also be informed of the 
 intention to hypothecate (c). In considering an objection to a 
 bottomry bond on ship and cargo, upon the ground that the master 
 had not communicated with the owners of the cargo before giving the 
 bond, the court will consider the probable effect of the delay arising 
 from such communication, and not only whether it was reasonable 
 and prudent for the master or the lender of the money to have any 
 such communication witn the owner or consignee of the cargo before 
 entering into the bond. 
 
 Where a bottomry bond was given at Plymouth by the master of 
 a British ship, the owner of which, during its voyage to the East 
 Indies, had died insolvent, his personal representative not having 
 administered, and declining to make advances, a learned Judge of 
 the Court of Admiralty entertained no doubt of his jurisdiction {cl) . 
 More recently he refused to support a bottomry bond given by the 
 master, with the consent of the owner, upon a British ship lying 
 in a British port for a new voyage, on the ground that it would create 
 without necessity a secret lien on the ship, to the prejudice of sub- 
 sequent bona fide mortgages (e) . 
 
 (rt) See Wallace v. Fielden, 7 Moore P. P. C. 398, as to the master's duty to com- 
 
 C, 398 ; the Lizzie, L. R. 2 A. & E, 254 ; muiiicate, where the means exist, with his 
 
 the Onward, L. R. 4 A. & E. 38. owners, 
 
 (i) The Panama, 39 L. J. Ad. 37. (c) The Eoyal Arch, Swab. 269. See 
 
 (c) The Oliver, 31 L. J. Ad. 37, the iTeZ/^o/awr/, Swab. 491, where the owner 
 
 (rf) The Trident, 1 W. Hob. 29. And see gave a bond abroad. 
 Wallace v, Fielden, the Bristol, 7 Moore,
 
 5. HYPOTHECATING SHIP. 109 
 
 Raisiiin 
 
 [With regard 'co a foreign country, the rule appears to be, thai: if Chap. 3. 
 the master of a vessel has occasion for money to repair or victual his 
 ship, or for any other purpose necessary to enable him to complete 
 the enterprise in which she is engaged, whether the occasion arises bottomiy^in 
 from any extraordinary peril or misfortune (/), or from the ordinary foreign 
 course of the adventure, he may, if he cannot otherwise obtain it, ^^""*^y- 
 borrow money on bottomry at maritime interest, and pledge the ship, 
 and the freight to be earned in the voyage, for repayment at the 
 termination of the voyage. When this is done, the owners are never 
 personally responsible [g) . The remedy of the lender is against the 
 master of the ship. 
 
 But if the person who thus advances money does not choose to 
 take upon himself the risk of the ship^s return, and will be content 
 not to demand maritime interest, there seems to be no reason why 
 the master should not pledge both the ship itself and the personal 
 credit of the owner. And in a case which came before Sir John 
 Strange, Master of the Rolls, wherein a man, avIio had advanced 
 money to refit a ship in distress at Jamaica, and had taken from the 
 master both a deed of hypothecation of the ship, and bills of exchange 
 upon the principal owner in England, for the amount of the sum 
 advanced, claimed payment of the owners personally, the ship having 
 been captui'ed on her voyage home, it was decreed that he should 
 recover the money ; and it is said also, that the ship was thought to 
 be well hypothecated (//).] But it has been decided that the master 
 has no authority to hypothecate the ship to secure advances for 
 repairs, unless repayment be made to depend on the arrival of the 
 ship (i) . A bottomry bond may be given to a person who, without 
 
 (/) The Oauntlet, 3 W. Rob. 82. The 169; the Atlas, 2 Hagg. 48; the Emanci- 
 
 Prince George, 4 Moore, P. C. 21. paiion, 1 Wm. Rob. 121. The judgment 
 
 (ff) Molloy, book 2, ch. 11, s. 11. of the Court of Common Pleas, in Stain- 
 
 (k) [^Samstin v. Bragir.gton, 1 Ves. 443. hanlc v.Fenning, sliows Samsunv. Jirac/ing- 
 It appears by the entry of the pi'oceedings ton, the only case of a contrai'y aspect, to be 
 in the registrai"'s book, that the defendant unsatisfactory. This court agrees that it 
 Bragingtoxi said in his answer, that he is so, and also that Lord Tenteeden's 
 believed 20 per cent, was added to the opinion, Abbott, 8 Ed. 156 (as above), sup- 
 actual expense, to make \\p the sum for posed to have been expressed on the 
 which the deed of hypothecation was given ; authority of Sajnsun v. Bragington, was not 
 but this docs not seem to have been proved. well founded. We intimate no doubt that 
 The deed of hypothecation, as stated in the a bottomry bond may be given at the same 
 plaintiff's bill, was for payment absolutely, time with, and as a collateral security for, 
 and not upon condition of the ship's safe bills of exchange dra\\Ti on the owner. The 
 arrival in England, and the deed was proved Emancipation, 1 Wm. Rob. 121. If neces- 
 in the cause.] saries can be provided on tlie personal credit 
 
 (i) Stainhank v. Fenning, 11 C. B. 88. of the owners, or on a bill drawn on them 
 
 In the case, Stainhank v. Shepperd, Ex. Ch. by the master, a bottomry bond cannot 
 
 22 L. J. Exch. 341 ; 13 C. B. 418, in afterwards be given to secure the same debt, 
 
 which, the facts being the same, a bill of because the necessity of hypothecating the 
 
 exceptions had been tendered at the trial, ship, is the condition of the master's autho- 
 
 Baron Paeke, in delivering the judgment rity. The Augusta, 1 Dods. 283. Bills of 
 
 of the court, observed : — " Precedent and exchange may be di-awia on account of the 
 
 authority show that it is essential to hypo- supply, and a bottomry bond given at the 
 
 thecation that the sea-risk should be same time as a collateral security, in this 
 
 incurred by the lender, and that the pledge sense, that if the bills are honoured — the 
 
 should take effect only in the event of the Nelson, 1 Hagg. 174 — the bottomry is dis- 
 
 ship's safe arrival. The Nelson, 1 Hagg. charged ; and though the ship arrive the
 
 110 master's authoeity as to repairs, &c. 
 
 Part III. actually advancing money, lias pledged liis credit for the expenses of 
 the ship {a). 
 
 6. Requisites to Validity of Bottomry Securities. 
 
 Money should [It is necessary, however, to the validity of a bond securing mari- 
 
 be advanced ^^-^q interest, that the money should be originally advanced upon 
 
 shir^*^'* °^ t^e credit of the ship. If it be originally advanced upon the credit 
 
 of the owner, and such a bond be afterwards given, in consequence 
 
 of doubt arising as to his responsibility, even before the ship leaves 
 
 the place of advance, the boud will be invalid [b). 
 
 To whom and It is no objection to the validity of such a bond that it happens 
 
 by whom j-q "[^g given to the consignees of the cargo ; the necessity of borrow- 
 
 ^^'^^^' ing by hypothecation, and the fairness of the transaction, being 
 
 established (c).] And this is so, though the master was appointed 
 
 by the consignees. 
 
 It has been doubted even whether a master substituted by under- 
 writers, after abandonment by the owners, cannot give a valid 
 bottomry bond {d). Bonds given by masters substituted by the 
 British consul at a foreign port, and even given by the consul him- 
 self, after a new master, in a case of great emergency, had been 
 appointed by him, have been supported against a claimant on a bond 
 of prior date (e) . So also has a bond given by a master who had 
 been confined by a mutinous crew, though given to cover charges 
 incurred when he was out of possession, and which the bondholder 
 has incurred without his authority (/). These securities are the 
 creatures of necessity and distress, and may be expected to assume 
 different shapes, which cannot be limited except by the condition of 
 
 maritime interest is not payable ; if dis- 39 L. J. Ad. 12. But where it is clear 
 
 honoured, the amount is payable on arrival that the advances were made on the faitli 
 
 by means of the remedy against the ship, of a lien on the ship, according to the law 
 
 and, in that case, witli maritime interest. of the country, the bond is good. The 
 
 The Catherine, 3 Hasg. 253; the i:man- Alexander, 1 Dods. A. E. 280. The 
 
 citation, 1 Wm. Rob. 121 ; the Atlas, Vibilia, 1 Rob. 1. Smith v. Gould, P. C. 
 
 1 Wm. Rob. 121. So that in that event, 6 Jur. 543. The Eorjal Arch, Swab. 278. 
 
 if the bills are accepted, the creditor has a As to the presumption that a foreign 
 
 double remedy against the person of the lender makes advances in contemplatioia of 
 
 debtor and against the ship. But the law bottomry, see the Karnak, 37 L. J. Ad. 41. 
 
 will not allow the creditor to have a direct (c) [The Alexander, 1 Dods. 278 ;] the 
 
 remedy on the bond itself, against tlie owner Bubicon, 3 Hagg. 9. 
 
 as well as the ship ; and it makes it essen- (d) The Kennersley Castle, 3 Hagg. 1. 
 
 tial to the remedy against the ship that it Lord Cochrane, 2 W. Rub. 320. 
 
 should be contingent on its safe arrival, (e) The Zodiac, 1 Hagg. 320 ; the Ci/ti' 
 
 and this whether maritime interest is or is thia, 16 Jur. 748. As to the power of a 
 
 not required." master appointed by a charterer to pledge 
 
 (a) The Hoi/al Arch, Swab. 279. the ship by bottomry contract, see ante, 
 
 (b) [The Augusta, 1 Dods. 283 :] the p. 91, note. 
 
 Wave, 15 Jur. 518; Oore \. Gardiner, (/) The G«««^H 3 W. Rob. 82. 
 3 Moo. P. C. 79. The Empire of Fern,
 
 G. REQUISITES TO BOTTOMRY SECURITIES. HI 
 
 a faithful and beneficial discharge of the authority exercised in Chap 3 
 granting them, as being necessary for the preservation of property. — — 
 A bottomry bond given to the charterer of a ship was supported by 
 Lord Stoavell, although there was a consignee of the ship at the port, 
 the latter not being willing to make the advances [g). When a 
 bottomry bond had been given to the agent (A) of the owner, and it 
 was objected that the agent was bound to supply the necessary funds 
 for the disbursements of the ship without bottomry security, the same 
 learned judge said— ''The case of necessity, which is the foundation 
 of a bottomry bond, does not arise where there is a credit existing on 
 which money can be obtained without resorting to the real security 
 of the ship. At the same time, I will not take upon myself to lay it 
 down as an universal proposition, that an agent may not, under any 
 circumstances, take the security of a bottomry bond. Cases mav 
 possibly arise in which an agent may be justified in so doing. 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 a certain reasonable limit, he may then surely be 
 at liberty to hold his hand, and to say, ' I give up the character of 
 agent,^ and, as any other merchant might, to lend his money upon 
 bond, to secvirc its payment with maritime interest.'' 
 
 But a person indebted to the owners of a vessel cannot lend money 
 to her master on bottomry (/). He should satisfy his debt, and there 
 would be no necessity for the bond. 
 
 [There is no settled form of contract in use on these occasions. Form of con- v 
 Sonietimes an instrument in the form of a bond, at others in the tmct. j 
 
 form of a bill of sale, at others of a dififerent shape, is made use ' 
 
 of {k) ; but, whatever the form, the occasion of borrowing, the sum, 
 the pi-emium, the ship, the voyage, the risks to be borne by the 
 lend&r, and the subjection of the ship itself as security for the pay- 
 ment, all usually are and properly ought to be expressed.] 
 'It is absolutely necessary that the liability of the lender to the sea 
 risks should appear or be fairly collected or implied from the instru- 
 ment (/), Maritime interest is not essential to its validity, though a 
 stipulation for an ordinary rate of interest will be a material circum- 
 stance in determining whether maritime risk was intended [m). 
 
 If sea risk be directly expressed, a stipulation that the ship shall 
 be insured for the voyage by the lenders, and the premium be repaid 
 
 {g) The Nelson, 1 Hagg. 169. two difterent forms used in the same voyage» 
 
 (A) The Hero, 2 Dods. 139. The Oriental, one at Bombay, the other at the Cape of 
 
 7 E. & M. 476. See Smith v. Bank of New Good Hope. In Johnson v. Shippen, 2 Lord 
 
 South Wales, 41 L. J. Ad. 49, where a Eaym. 982, the hypothecation was by a bill 
 
 bond to an agent was held good. Upon the of sale,] Portsea, 2 Hagg. Adm. Rep. 84; 
 
 3 & 4 Vict. c. 65, s. 6. it has been held that [in Menetone v. (Hhbons, 3 Term Rep. 267j 
 
 an agent for a ship, being also part-owner, it was by bond.] 
 
 may sue in rem for necessaries supplied to (I) 2 Hagg. 57, Atlas. The Indomitable, 
 
 it. The West Friesland, Swab. 454. Swab. 44. 
 
 (0 The Hebe, 2 W. Rob. 146. The (w) The i:mancipation,l^Yxa.Tioh.l24!. 
 
 Karnak, 37 L. J. Ad. 41 ; L. R. 2 Ad. 289. The Indomitable, ubi supra. The Eoyal 
 
 {k) [The reader will find in the Appendix Arch, Swab. 279.
 
 112 master's authoeity as to eepaies, &0. 
 
 Part III. by the borrowers^ may not be thought material [a) . These instru- 
 
 ments being the language of commercial men, and not of lawyers, 
 
 will receive a liberal construction to give effect to the intention of 
 the parties {b). Thus in an action on a policy of insurance, where 
 the plaintiff in his declaration alleged his interest to be bottomry, 
 setting out the bond in which was the following clause — " I do fur- 
 ther hereby bind myself and schooner brig Clarence, her freight and 
 cargo of every kind, to the full and complete payment of the said 
 sum, with all charges thereon, in eight days after my arrival at the 
 afore-mentioned port of London ; and I do hereby make liable the 
 said vessel, her freight and cargo, whether she do or do not arrive at 
 the above-mentioned port of London, in preference to all other claims, 
 until such sum, with 12/. per cent, bottomry premium, be paid^^ — 
 the Court of Common Pleas, upon demurrer, decided that it was not 
 bottomry, and gave judgment for the defendant. The case being 
 brought by writ of error before the C/Ourt of King's Bench, that 
 judgment was reversed; Lord Tenterden said, '' We are all satisfied 
 that our judgments must be for the plaintiffs. Of course, no person 
 can be entitled to the periculi pretium who does not take upon him- 
 self the risk of the voyage — but it is not necessary that his doing so 
 shall be declared expressly, and in terms, though this is often done : 
 it is sufficient that the fact can be collected from the language of the 
 instrument considered in all its parts. In this case, if the words 
 * instead of eight days after my arrival' had been ' eight days after my 
 ship's arrival,' there could have been no doubt that the lender took 
 upon himself the peril of the voyage, if there be not, in some part of 
 the instrument, some matter denoting a contrary intention. Now 
 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 per- 
 sonally and absolutely for the payment, without regard to the means 
 with which he might be furnished by the ship and her freight ; we, 
 therefore, are of opinion that the words ' my arrival' must be under- 
 stood to mean my arrival with the ship, or my ship's arrival. With 
 respect to the words ' I do hereby make liable the said vessel, her 
 freight and cargo, whether she do or do not arrive at the above- 
 mentioned port of London,' we think these words were intended to 
 provide only for the ship's arrival at some other than the destined 
 port, and, in such an event, to give the lenders a claim on the 
 ship in preference to other claims : it cannot be intended to pro- 
 vide for the case of the loss of the ship, because in that event there 
 would be nothing on which a pledge could operate, or a preference be 
 claimed.'-' 
 
 The master and part-owner of the ship sometimes professes to 
 bind not only himself and his ship, but also his co-owner personally, 
 
 (a) The Indomitable, Swab. 44. (b) Si/monds v. Hodgson, 6 Biug. 114 j 
 
 3 B. & Ad. 50.
 
 7. FOR WHAT BOTTOMRY SECURITIES MAY BE GIVEN. 113 
 
 wliiclij unless authorized by such co-owner's deed, previously exe- Chap. 3. 
 
 cuted, he had no power to do. Such an instramentj though it he 
 
 inoperative as to the owners personally, is nevertheless valid as 
 against the master and the ship. In the case of the Nelson [c), Lord 
 Stowell said, " One objection is that it binds the owners personally 
 as well as the ship and freight — which it cannot do. Here we don^t 
 take this bond in toto, as is done in other systems of law, and reject 
 it as unsound in the whole if vicious in any part ; but we separate 
 the parts, reject the vicious, and respect the efficiency of those which 
 are entitled to operate. The form of these bonds is different in 
 different countries ; so is their authority. In some countries they 
 l)ind the owner or owners, in others not ; and where they do not, 
 though the form of the bond affects to bind the owners, that part is 
 insignificant, but does not at all touch upon the efficiency of those ■ 
 parts which have an acknowledged operation.'^ 
 
 [Bills of exchange drawn by the master on the owner, as security 
 for money advanced to the master, though accompanied with a verbal 
 engagement by him that the ship shall be liable, cannot be con- 
 sidered as an instrument of hypothecation [d).'\ But, although a 
 bottomry bond cannot be made to cover advances upon the personal 
 security of the borrower, and not upon the exclusive security of the 
 ship, yet if bottomry be originally contemplated, the bond will not 
 be invalidated by taking bills of exchange at the same time by way 
 of collateral security [e] . 
 
 A bottomry bond may be good in part, and bad in part (/). Bond may 
 
 be good in 
 part, and bad 
 in part. 
 
 7. Must be for Relief of Ship's Necessities {[/). 
 
 [It is equally clear that the master cannot charge the ship by any 
 instrument of hypothecation for any debt of his own. The attempt 
 would be a fraud in him, and those who should aid him to do so would 
 be parties to the fraud ; and therefore the fairness of the loan may be 
 made the subject of inquiry and contest, if justice require it. But 
 provided the ship has been in a state of want, and the money fairly 
 advanced to the master to relieve her, his subsequent misapplication 
 of it will not deprive the lender of the benefit of his security (A) .] 
 
 (f) 1 Hagg. 176. See also 1 Hagg. 13 ; (/) Tbe Augusta, 1 Dods. 283. Smith v. 
 
 3 Robs. ; 1 Dods. 288 ; 2 Dods. 146. " Gould, 6 Jur. 543, P. C, The Jonathan 
 
 (d) Ex ixtrte Halkett, 3 Ves. & Beames, Goodhue, Swab. 355. Smith v. Bank of 
 135 ; 19 Ves. jun. 474 ; 2 Rose, 194 and 22. New South Wales, 41 L. J. Ad. 47. 
 
 (e) The Augusta, 1 Dods. 283. The {g) As to the meaning of necessity, see 
 Jane, ibid. 461. The Tartar, 1 Hagg 3. the Karnak, 38 L. J. Ad. 57; the Ida, 
 The St. Catharine, 3 Hagg. 258. The 41L. J. Ad. 85; L. R. 3 Ad. 542. 
 Emancipation, 1 Wni. Rob. 124. Tbe (A) Dig. 14, 1, 7, 2; Molloy, book 2, 
 Ariadne, ibid. 421. The Bonaparte, 3 Wm. c. 11, s. 11. See also the judgment of Sir 
 Rob. 306; Smith v. Bank of Neio South W.Scott, in the &V«^jY2K?fKe, 3 Robs. Adm. 
 Wales, 41 L. .1. Ad. 47; and see Stninbank Rep. 272, 
 
 V. Shepherd, 11 C. B. 51. Ante, p. 109, 
 note (i).
 
 114 . master's authoeity as to eepaies, &c. 
 
 Part III. He cannot bind lier for charges relating to the ontwarcl cargo, 
 even though tliey constitute debts properly due by his owners^ unless 
 the ship might be arrested for them [a], nor for a debt incurred in a 
 former voyage {b) , if the former voyage be distinct from the voyages 
 in progress. But in the case of a voyage out and home^ he may 
 bottomry for debts incurred in the former part of it [c) . 
 
 [As an illustration of the rule that the master cannot bind the ship 
 for a debt of his own, the following case is related by Loccenius [d) ; 
 — The master of a ship being in a Spanish port, and having exposed 
 the ship to seizure by his neglect to comply with a particular regula- 
 tion of the country, entered into an agreement with a person who 
 was supposed to possess sufficient influence to obtain the restitution 
 of the ship, to pay him a very considerable sum, with maritime 
 interest, if he should procure the restitution of the ship, and she 
 should afterwards return home in safety; and for securing the pay- 
 ment executed an instrument in the nature of a bottomry bond. 
 Through the interest of the person with whom the agreement was 
 made, the ship was restored, and afterwards returned home in safety ; 
 and he instituted a suit against the ship upon the instrument 
 executed to him by the master ; but it was determined that the ship 
 and owners were not chargeable by this contract.] 
 
 It may be questionable whether a lender on bottomry be bound to 
 see to the application of the money he advances, but it is clear that 
 he must make due inquiry to ascertain that an unprovided necessity 
 exists, and that without money so advanced, the ship cannot proceed 
 on her voyage. Accordingly, where, without such previous inquiries, 
 advances were made on bottomry to the master of a ship, which had 
 arrived with a considerable cargo in a foreign port, and remained 
 there two months, the repairs, which were unimportant, having been 
 completed and her stores furnished before the advance, although 
 there was no fraud on the part of the bondholder, yet as there was 
 no real necessity for borrowing at maritime interest, the bond was 
 not supported (e). But where repairs are necessary, it is not in- 
 cumbent on the foreign merchant, before he advances money on 
 bottomry, to calculate the expediency of incui'ring the expense of 
 them (/) . And the necessity for borrowing on bottomry being estab- 
 lished, the court will not minutely examine what was done in pre- 
 paring the vessel for sea (g) . 
 
 The bond must be given by the master acting as such within the 
 scope of his authority. A ship was freighted and insured from 
 London to Calcutta and back. The master on his arrival there. 
 
 (a) Tlie Fi-iHce George, 4 Moore, P. C. (e) The Augusta, 1 Dod. 283. The 
 
 21. The North Star, 1 Liish. 45. Orelia, 3 Hagg. 75 ; and see Heathorn v. 
 
 (i) The Augusta, 1 Dods. 283. Locldel, Barling, 1 Moore, P. C. Eep. p. 5. 
 
 2 Wm. Rob. 45. The OsmanU, 3 W. Eob. Soarcs v. Hahn, 3 Moore, P. C. Rep. 1 j 
 
 198. The Toivo, 1 E. & A. R. 185. and Gore v. Gardner, 1 Moore, P. C. 
 
 (c) The Udmond, 1 Lush, p. 57. Green Rep. 76. StainhanJc v. Fenning, 11 C. B. 
 
 V. Briggs, 6 Hare, 359. Smiil v. Goxdd, 88. 
 
 4 Moore P. C. 21. (/) The rihilia, 1 "\Vm. Rob. 1. 
 
 (rf) Lib. 2, c. 6, s. 12. \g) The Rogal Arch, Swab. 269.
 
 8. PEOCEEDINGS ON BOTTOlilRT SECURITIES. 115 
 
 employed certain raercliaiits, upon whom lie liad a limited credit, to Chap. 3. 
 procure a return cargo. This credit was, however, soon exceeded, ■" — 
 and on tlieir advice he took a cargo to the Mauritius, In defiance 
 of letters from his owners, ordering him to return home, he after- 
 wards made several intermediate voyages, and having returned to 
 Calcutta, cliartered his vessel to the same merchants, who, on a fresh 
 cargo to the Mauritius, received tlie freight, and for a small balance 
 in their favour took from him a bottomry bond. The Court of 
 Admiralty pronounced against the bond. The advances thus made 
 by the merchants beyond the credit limited by the owners were licld 
 to have been made on the credit and responsibility of the master. 
 If any necessity existed for a loan on bottomry, it had been created 
 by the merchants themselves^ who had no right to trust to his re- 
 presentations, or aid his private schemes and speculations Avithout 
 authority from his ov>'ners (//). 
 
 A bottomry bond executed by the master while under arrest, at 
 the suit of the bondholder, has been held valid, it not appearing to 
 liave been extorted by duress {i) ; but where given by him, upon a 
 threat of arrest, for supplies previously furnished on his personal 
 credit, it was held void {k) . 
 
 8. Proceedinys in Admiralty upon them (/). 
 
 Upon the arrival of the ship in this country, if the loan is not 
 repaid within {m) the time prescribed, proceedings may be taken in 
 the Court of Admiralty {n), and the ship may be arrested (o). If in 
 the course of the proceedings it becomes necessary to sell the ship, 
 the court decrees a sale to be made under the direction of its own 
 commissioners, and afterwards distributes the proceeds among the 
 different claimants, as justice requires ; and this may be done, if the 
 
 (A) Thei?<'/«««ce,3 Hagfr.Adm.Rep.66. 1 W. Rob. 1. The N. E. Gosfabrlck, 
 
 In the ca.se of the J[2<;-ora, the doctrine was Swab. 344. The Lochiel, 2 Wm. Rob. 
 
 Bumined up in the Supreme Court of the 34. Smith v. Gould, 4 Moore, P. C. 21. 
 
 United States in the following terms : — Dohson v. Li/all, 8 Jur. 969 ; 3 Myl. & C'r. 
 
 ^' To make a bottomry bond, executed by 453 (w). 
 
 the master, a valid hypothecation, it is (I) As to the jurisdiction of the Court of 
 
 necessary to show that the master acted Admiralty, see -B;vV/y/««»'s case, 12 Jas. 1; 
 
 within the scope of his authority; or in Hob. 11; Moor. 918; 1 Ro. Ab. 530. Scar- 
 
 other words, that the ad\'ances were made borough v. Lyrus, 3 Car. 1 ; Latch. 352 ; 
 
 for repairs or supplies necessary for effee- Noj',95. i?j/rtZv. -ffo/^e,l Atk. 175. Corsetw 
 
 tuating the objects of the voyage, or the Busely, 1 W. & M. Comb. 135 ; Rep. temp, 
 
 safety and seciirity of the ship. And no Holt. 48. _Be»re« v. Jep^'fi*, 1 Lord Raym. 
 
 presumption should arise in the case that 152. Johnson v. Sh'qipen, 2 Anne; 2 Lord 
 
 such repairs or supplies could be procured Raym. 982; Salk. 35; 6 Mod. 79; Rep. 
 
 on reasonable terms with the credit of the temp. Holt, 48. Lister v. Baxter, ^tvA.QQb. 
 
 owner, independent of such hvpotheca- Menetone v. Gihhons, 3 Ter. Rep. 267. 
 
 tion."— 1 Wheaton's Rep. 96. The Ida, (m) See the Eitdora, 48 L. J. Ad. 32 ; 
 
 41 L. J. Ad. 85. L. R. 4 P. D. 208. 
 
 (i) Heart of Oak, 1 Wm. Rob. 204. («) See ante, 3, note (e). 
 
 {¥) Gore v. Gardner, 3 Moore, P. C. (o) See the Judicature Acts and the rules 
 
 Rep. 79 ; the Augusta, 1 Dods. 283. The of court made under same. See the U^est- 
 
 Hoyal Arch, Swab. 279. The VihiUa, moreland, 2 W. Rob. 391. 
 
 T 2
 
 116 master's authoeity as to eepaies, &0. 
 
 Part III. owners or persons interested in the ship do not duly appear to the 
 
 action; otherwise their absence or default would occasion a failure of 
 
 justice. 
 
 This proceeding in rem against the ship itself is the proper and 
 peculiar province of the Court of Admiralty, The jurisdiction of the 
 other divisions of the High Court of Justice is exercised by action 
 against the person only (except in some particular cases of forfeiture 
 or demands of the crown) ^ although in many cases judgment is 
 ultimately pronounced for the recovery of the subject of dispute in 
 specie (a) . 
 
 The validity of the bond being admitted or established_, the Court 
 of Admiralty^ on objection by the owner of the ship or cargo that the 
 items charged are not such as the law allows, will refer that question, 
 and act on the report of the referees, unless exceptions to it are 
 clearly substantiated (b). A master^s wages paid him in a British 
 colony on leaving the ship by necessity of ill health have, as con- 
 stituting a lien on the ship, been allowed (c) . A bondholder's claim 
 has been preferred to a claim for wages by the master signing the 
 bond by which he made himself liable {d) . Reimbursement to the 
 owner of a vessel who had advanced money for wages^ has been refused 
 against a bottomry bondholder (e) . 
 
 In deciding upon commissions in a foreign port claimed under a 
 bond, the court will take local usage into consideration, but allow 
 them only so far as they are reasonable (/). 
 
 Advances made by a charterer on account of freight pursuant to 
 the stipulations of a charter-party, may be deducted by him from 
 freight payable to a bondholder, although they were made subse- 
 quently to the giving of the bond ; the premiums of insurance on 
 such advances may also be deducted (g) . 
 
 A bottomry bond becomes payable upon the abandonment of the 
 voyage agreed upon in it [h], and must be enforced within a reasonable 
 time (i) , or the holders of it may lose their right of precedence over 
 other claimants. The laches of a bondholder in enforcing his bond 
 cannot be set up as a defence to it by a mortgagee whose position 
 is not thereby prejudiced {k). A bondholder is under no obliga- 
 tion to communicate the existence of the bond to the mortgagees 
 of the ship, and is not affected by the owner concealing it from 
 
 (a) As to a court of equitj' before tlie (/) The Zodiac, 1 Hagg. 330. The 
 
 Judicature Acts restraining proceedings. Cognac, 2 Hagg. 392, and 3 Hagg. 163. 
 
 see Glascott v. Lang, 8 Sim. 358 ; 3 The Roderic Dhu, Swab. 177. The Glen- 
 
 Myl. & Cr. 451. Dobson v. LyalJ, 3 Myl. & manna, 1 Lush, 115. As to interest after 
 
 Cr. 453. Duncan v. M'Cahnont, 3 Beav. bond payable, see the Sajphia Cook, 49 L. J. 
 
 409. Ad. 16. 
 
 (6) The Eajah of Cochin. The Ch/de, (g) The Standard, Swab. 267. Tlie 
 
 Swab. 473. ' Catherine, Swab. 263. The KarmJc, 38 L. J. 
 
 (c) Ibid. Ad. 57 ; L. R. 2 P. C. 505, 514. 
 
 {d) The Jonathan Goodhue, Swab. 524; {h) Tlie Seligoland, Swab. 491. 
 
 the Edward Oliver, L. R. 1 Ad. 379; see (J) The Royal Arch, Swab. 282. 
 
 post, " Maritime Liens." (k) The Heligoland, ub. sup. 
 
 (e) The Janet Wilson, Swab. 262. See 
 the Union, Lush. Ad. 138.
 
 9. PEIOEITY OF BOTTOMRY SECURITIES. 117 
 
 him {I). A bottomry bond originally valid, is not affected by an Chap. 3. 
 agreement by the bondholder to purchase the ship {m). 
 
 9. If several Securities of this kind, the last entitled to Priority. 
 
 [It should be observed of these securities in general, that if they 
 are given at different periods of a voyage, and the value of a ship is 
 insufficient to discharge them all, the last in point of date is entitled 
 to priority of payment, because the last loan furnished the means of 
 preserving the ship, and without it the former lenders would entirely 
 have lost their security — salvam fecit totius jyignoris causam {n). 
 
 This is the general rule, but the security last in date must have 
 arisen out of the destitute situation of the master, and his inability 
 to obtain the necessary supplies for his vessel on the personal credit 
 of himself or his employers ; otherwise it will not be a security of 
 that privileged kind which is entitled to claim precedence, and defeat 
 the right of a foreign merchant who has previously advanced money 
 on the ship. This was the decision in a case in the Court of 
 Admiralty, of Avhich the following were the facts :— The vessel was 
 bound on a voyage from Malta to London, and put into Port Mahon 
 in distress, where the master hypothecated the ship and freight. 
 The ship being repaired, proceeded on her voyage, and, in conse- 
 quence of damage, put into Cork, from whence the master applied 
 by letter to the principal owners of the cargo for money to pay for 
 the necessary repairs, who, in consequence of this application, opened 
 a credit with Messrs. Goiu and Fennel, of Cork, and gave thern direc- 
 tions to advance such money to the master as should be requisite to 
 repair the ship. Messrs. Goin and Fennel advanced the money, and 
 took bonds of bottomry, which they endorsed over to the principal 
 owners of the cargo, and drew on them bills of exchange for the 
 amount of the money so advanced to the master. The court pro- 
 nounced for the validitv and priority of the first bottomry bond 
 granted at Port Mahon (o).] A bottomry bond is entitled to priority 
 of payment over a mortgage during the voyage in the course of which 
 the bond was executed [p). The bondholder is not required to com- 
 municate the existence of the bond to the mortgagee of the ship, and 
 is not aftected by the owner concealing it from him {q). Nor can a 
 mortgagee set up as a defence to the bond, the laches of the bond- 
 holder in enforcing it, unless his position has been thereby pre- 
 judiced (r). 
 
 (I) The Eellgoland, ub. sup. priority as against a successful suitor hi a 
 
 (m) Ibid. cause of damage, see the Aline, 1 Wm. 
 
 \n) [BynTcershoelc, Quest. Jur. Pub. lib. 1, Rob. Ill ; the Senaris, 14 Jur. 581 ; 
 
 c. 19.] See the Eliza, Weddell, 3 Hagg. Banner v. Bell, 7 Moore, P. C. 2%^, post, 
 
 Adam. Rep. 87. As to seamen's wages having "Maritime Liens.' , „^f, 
 
 priority, see the Hcrsey, 3 Hagg. 467, post, ( p) The Royal 4rcA, Swab 269. 
 
 " Maritime Liens." il) Tbe Eehgoland, Swab. 491. 
 
 (o) \_Ehadamanthe, 1 Dods. 201.] As to (>•) Ibid. 491.
 
 118 mastek's authokity as to eepaies, &c. 
 
 Part III. 
 
 10. Extent to which Freight and Cargo may be pledged. 
 
 As to freight. Wherever the master may pledge the ship, he may pledge the 
 freight also. The master of a Hamburgh ship being at Baltimore, 
 and about to sail for Cork^ executed a bottomry bond^ purporting to 
 biud the ship and her freight in general terms, neither expressly con- 
 fined to the freight of the present voyage, nor extended to future 
 adventures. The ship sailed to Dublin instead of Cork, and thereby 
 the holder of the bond lost the opportunity of instituting proceedings 
 upon it at that time, and the freight was accounted for to the owners, 
 though the deviation did not appear to have been made with this 
 view. From Dublin the ship sailed again to America, and from thence 
 to London, at which latter place the holder procured the ship to be 
 sold under the authority of the Court of Admiralty ; and the produce 
 being insufficient to discharge the bond, he petitioned the court to 
 have the freight of the last voyage applied to that purpose. The 
 freight was then in the hands of the agents of the owners. It was 
 objected, that such a bond created a lien upon the freight of the 
 existing voyage only; but the learned judge of the court, adverting 
 to the fact of the freight of both voyages having come to the account 
 of the owners, granted the prayer of the petition, at the same time 
 desiring " not to be understood as laying down any general rule 
 applicable to all circumstances and all cases, where any third party 
 might have become interested in the freight of the subsequent 
 voyage " [a) . 
 
 In the case of the Prince Regent, decided by liOrd Stowell, a 
 bond had been given on the ship and cargo only, not mentioning the 
 freight. The ship and cargo were arrested, but the freight was paid 
 over to other parties before anything was done at the instance of the 
 bondholder. The ship proved insufficient to pay the bond, but the 
 cargo was ample for that purpose. Lord Stowell decreed that the 
 bondholder should be paid the balance of the proceeds of the ship, 
 wages deducted, and be put in possession of the cargo, so far as was 
 necessary for the full payment of the bond. The owner of the cargo 
 prayed a monition against the owners of the freight, who rested their 
 defence on this, that the freight was not bound, not being named in 
 the bond ; and that as the freight could not be an'ested at the suit 
 of the bondholder, he could only proceed against the ship. Lord 
 Stowell required the freight to be brought in, and decided that the 
 ship and freight must be exhausted before resort was had to the 
 
 (a) The J(7co J, 4 Eub. 245. As a general thing which is in danger of perishing by 
 
 rule freight to be earned iu a subsequent maritime risk. In this case it was held that 
 
 voyage cannot be included in a bottomry the bond being bad as to the freight did 
 
 bond; as by the very nature of a bottomry not make it entu-ely bad. Smith v. Sank 
 
 bond the person who takes it is to become of JS'eio South Wales, 41 L. J. Ad. 49 j the 
 
 liable for the maritime risk, and, therefore, Karnak, L. R. 2 P. C. 505, 514. 
 nothing can be hypothecated except some-
 
 10. PLEDGIXG FREIC4HT AND CAEGO. 119 
 
 cargo (b) . "Where there are several bonds, some bmdiiig the ship Chap. 3. 
 
 and freight, others the ship, freight, and cargo, the Court of Admiralty 
 
 will marshal the assets, directing one claim to be satisfied from the 
 cargo, and another from the ship and freight (c) . Not so if it can 
 only be done by violating a rule entitled to preferential observance — 
 for where there were three bonds, the earliest on ship and freight — 
 the next on ship and cargo— and the last on ship and cargo, and the 
 value of ship, freight, and cargo was insufficient to pay all, it was 
 held that the last must be paid out of ship and freight, without resort 
 to the cargo, until they were exhausted, though the earliest bond Avas 
 thus left Avithout any fund against which recourse could be had for 
 its payment. "The question,'" said Dr. Lushington, "is whether 
 the court ought to compel the holders of the last bond to resort to 
 the cargo. If the holders of the last bond, which is upon ship and 
 cargo, have the same and equal right to proceed against the cargo as 
 against the ship and freight, I should be disposed to hold that in 
 equity they should be compelled to proceed against both, and in aid 
 of the other bonds to resort in the first instance to the cargo. But 1 
 apprehend, upon the authority of the Prince Recent, and the reason- 
 ing of Lord Stowell's judgment in the Gi'cititudine, the holders of 
 the last bond have no such right against the cargo ; they cannot make 
 the cargo answerable until the ship and freight have been exhausted. 
 The owners of the cargo have a perfect right to avail themselves of 
 the principle of that decision. They have a right to say that by law 
 the cargo cannot be touched till the ship and freight have been 
 exhausted. They are strangers to all previous bonds on ship and 
 freight. The result is, that the oAvners of the last bond who are 
 entitled to priority are thrown on ship and freight exclusively " [d) . 
 
 It has been held also in that court, that freight earned from sub- 
 shippers of goods, by permission of the charterers of the whole ship, 
 is liable as against them in payment of a bottomry bond, given at 
 the port of the charterers, fcr advances subsequent to the charter- 
 party (e). 
 
 Where a bottomry bond on freight has been given, and the ship 
 by which the freight is to be carried is lost in a collision with another 
 ship, from which the owners of the first ship recover in a limitation 
 of liability action instituted by the wrong-doing shipowners, among 
 other damages a sum in respect of freight, the bondholder is entitled 
 to receive from the shipowners recovering the damages such an 
 amount of freight as equals the sum lent by the bond, or a propor- 
 tionate amount according to the amount of freight recovered (/ ) . 
 
 And before the Judicature Acts it was held a good plea to the 
 further maintenance of an action in a common law court for freight, 
 
 (J) The Douothorpe, 2 Wm. Rob. 80. As {d) The PrisciUa, 1 Lush. 1 ; the Edward 
 
 to freight being iuciclcnt to the ship, see Oliver, 36 L. J. Ad. 13. • -d i» 
 
 Leslie v. Guthrie, 1 Scott, 683 ; Stephen- (e) The Eliza, Wcddell, 3 Hagg. A. R. 17. 
 
 son V. Dowson, 3 Beav. 342. (/) The Empusa, 48 L. J. Ad. 36. 
 
 (f) The Trident, 1 Wm. Rob. 29; the 
 Constaniia, 4 Ecc. & Mar. cases, p. 512.
 
 120 master's authoeity as to eepaies, &c. 
 
 Part III. that the defendants^ in a proceeding on a bottomry bond for less 
 than the amount of the freight^ -which had been instituted in the 
 Court of Admiralty after the commencement of the action, were 
 monished to bring, and did bring, the freight into that coui't, to abide 
 its judgment (a) . 
 As to cargo. [The value of the ship and freight, supposing the ship to reach 
 
 the place of destination, may sometimes be thought an insufficient 
 security for the amount of the expenses of the repairs, &c., neces- 
 sary to put the ship into a condition to proceed with its cargo, and 
 perform the voyage. In such a case of necessity it has been always 
 held, that the master, if he cannot otherwise obtain money, may sell 
 a part of his cargo to enable him to convey the residue to the destined 
 port (b) j and it has been decided in the Court of Admiralty, that the 
 master may hypothecate the ccn'ffo as well as the ship and freight (c) . 
 An Lnperial ship, coming from the jNIediterranean with a cargo of 
 fruit to London, was driven into Lisbon to refit. An estimate and 
 survey were made under the authority of a court at Lisbon, and it 
 was declared by the surveyors that the ship was of sufficient value to 
 warrant the repairs. The sum for which the deed of hypothecation 
 was executed exceeded the estimate of the ship in its damaged con- 
 dition, and of the freight, by a sum which was supposed to be about 
 equal to the charge that would fall upon the cargo for unloading, 
 warehousing, &c. The ship arrived at London, and the loan not 
 being discharged, the creditor instituted a suit in the Court of 
 Admiralty against the ship and cargo. The ship produced consider- 
 ably less than its estimated value, on account of its being a foreign 
 ship, and the impossibility of obtaining a register for it. It was 
 admitted that the question as to the validity of the hypothecation of 
 the cargo had never been actually contested and decided in this 
 country ; but several precedents of proceedings in the court upon 
 similar cases were found among the records of the court, and it was 
 agreed that the practice of hypothecating the cargo in such cases was 
 frequent among merchants. It did not appear whether or no the 
 master had an opportimity of sending the cargo by another ship ; 
 but the learned judge of the court held, that according to all the] 
 
 (a) Place v. Fotfs, 8 Exch. 705 ; 10 Ex. the master's duty, as agent of the ship- 
 
 370; 5 H. of L. Cases, 383. owner, to repair the ship, the shipowner 
 
 (I) [So where money is necessary to dis- will be liable to be sued by the owner of 
 
 charge the salvage on a recapture : by Lord the cargo, on an implied promise to indem- 
 
 Ellexboeougu, Ch. J. ill Parmenter v. nify him against the consequences of the 
 
 Todhunter, 1 Campb. 54-1.] acts of the master. Benson v. Duncan, 
 
 (c) [The Gratitudine, 3 Eob. Eep. 240.] 3 Ex. 644. Benson v. Chapman, Ql^l.&Q. 
 
 See also the io;-f? Cof/;raHf, 8 Jurist, 714, 792; 5 C. B. 330; 8 C. B. 950. The 
 
 and 1 W. Eob. Adm. Eep. 312. If the Olivier, 31 L. J. Ad. 137; Lush. Ad. 484; 
 
 value of the ship and freight be insuiBcient Lloyd v. Guilei-f, 6 B. & S. 100 ; L. R. 
 
 to satisfy the claim of the obligee of a 1 Q. B. 115, post. Before hypothecating 
 
 bottomry bond, by which the ship, freight, the cargo, it is necessary, when practicable, 
 
 and cargo have been hypothecated, the to communicate with the owners. The 
 
 owner of the cargo will be liable to con- Bonaparte, 3 Wm. Eob. 301. See William' 
 
 tribute to the repayment of the loan, and son v. Wilson, 18 L. J. 161 ; 8 Moo. P. C. C. 
 
 also to the cost of proceedings in Admiralty 459; Nuova Zoanese, 17 Jur. 263. The 
 
 to enforce the bond; but inasmuch as it was Onicard, 42 L. J. Ad. 61.
 
 11. RESPONDENTIA. 121 
 
 [authorities on the subject of transhipment^ the master was not bound Chap. 3. 
 to tranship ; and thinking, upon a view of all the circumstances of — 
 the case, that the master had acted for the best, according to the 
 appearance of things at the time, decided that the hypothecation of 
 the cargo was valid, considering the hypothecation of the ivhole to be, 
 both in its principle and in the consequences that might ordinarily 
 result from it, exactly analogous to the sale of a part. On account 
 of the great importance of the question, the learned judge invited the 
 parties to bring it by appeal before another tribunal.] 
 
 The cargo, however, to be bound by a bottomry bond, must be on 
 board at the time of its execution ; until it is on board, the master 
 has no authority to deal with it in any way (r/). 
 
 Bottomry bond upon ship, freight, and cargo, with a covenant by 
 the master rendering himself personally liable: freight and pro- 
 ceeds of ship insufficient to satisfy the bondholder and the masters 
 claim for wages and disbursements : — Held, that the master must be 
 paid out of the freight and proceeds in priority to the bondholder (e) . 
 
 11. Respondentia. 
 
 In bottomry, ship, freight, and cargo may be hypothecated — in 
 respondentia, cargo only. Until recently there was no record of a 
 decision on a respondentia bond by the Court of Admiralty, but on 
 the case arising, the learned judge of that court entertained no doubt 
 of his jurisdiction (/). It was held also in that case — the bond cover- 
 ing in part property not exposed to maritime risk — that it was bad as 
 to that part, but valid as to the residue ; and that where part only of 
 goods hypothecated by a respondentia bond reaches its destination, 
 such part is only liable to pay a proportional part of the money 
 secured by the bond according to the proportion borne by the goods 
 brought to their destination, to the total value of the property on 
 which the bond was given. 
 
 {d) The Jonathan Goodhue, Swab. 355. has made no such contract with the owners 
 
 (e) The Edioard Oliver, 36 L. J. Ad. of cargo and they are not entitled to invoke 
 
 13 ; L. R. 1 Ad. 379. This question a rule made only for the protection of the 
 
 arose between the master and the bondholder." 
 
 owners of the cargo, et 2^er Dr. LlJSH- {/) Cargo ex Sultan, Swab. 504. See 
 
 IXGTOX. " There is no reason why the the Atlas, 2 Hagg. 58. The Cognac, ibid. 
 
 owners of cargo should be benefited at 387. Glover v. Black, 3 Burrows, 1394. 
 
 the expense of the master, for the master, Btirk v. Fearon, 4 East, 319. Justin v. 
 
 though he may have bound himself for the Ballam, 1 Salkeld, 34. 
 
 payment of the bond to the holders thereof.
 
 122 BEHAVIOUR OF MASTEE AND MARINERS. 
 
 PartJII. 
 
 CHAPTER IV. 
 
 OF THE BEHAVlOUll OF MASTER AND MARINERS ; AND HEREIN, 
 
 Sect. 1. Of the Master's Did >/ to Ids EmpIoi/irs,\). 122. 
 
 2. Of Offences committed hy Master and Mariners, of his duties respecting them 
 
 and his general duties on l/oard Ship. Authority of Master to correct the 
 Mariners, p. 124. 
 
 3. Hegnlations of Foreign Ordinances as to disposal of Ship's Provisions, p. 130. 
 
 4. Of J3 readies of Diiig hg the Mariners. Desertion, Muting, Disobedience, cj'c, 
 
 p. 130. 
 
 1. Of the Muster's Duty to Ms Employers. 
 
 [The great trust reposed iii the master by the owners, and the great 
 authority whicli the L^vr has vested in him, require on liis part and 
 for his own sake, no less than for the interest of his employers, the 
 utmost fidelity and attention; for if any injury or loss happen to the 
 ship or cargo by reason of his negligence or misconduct, he is per- 
 sonally responsible for it ; and although tlic merchant may elect to 
 sue the owners, they will have a remedy against him to make good 
 the damages which they may be compelled to pay. So, if he make 
 any particular engagement or warranty without a sufficient authority 
 from his oAvners, although the owners may be answerable to the 
 persons watli whom he contracts, by reason of the general power 
 belonging to his situation and character, he is in like manner 
 responsible to the owners for the injury sustained by them in conse- 
 quence of his acting beyond, or in violation of, the particular 
 authority given to him [a) . 
 
 He is bound also to employ his whole time and attention in the 
 service of his employers, and the performance of the duties of his* 
 particular character, and is not at liberty to enter into any engage- 
 ment for his own benefit that may occupy any portion of his time in 
 other concerns ; and therefore, if he do so, and the price of such 
 engagement happen to be paid into the hands of his owners, they 
 may retain the money, and he cannot recover it from them. This is 
 well illustrated by the following case : — The master of an English 
 ship, being at Smyrna, entered into an agreement with the deputy 
 commissary of an English army to let the ship to government for six 
 months ; and having stipulated that his owner should receive forty 
 shillings per ton per month, he required that he himself should be 
 allowed the usual primage ; the commissary refused to make any] 
 
 (a) \_Fletcher v. Braddick, 2 New Eep. Compang, 1 P. & D. 103 ; and post, 
 182.] Fenton v. Dullin Steam Packet " Collision."
 
 1. master's duty to his employers. 123 
 
 [allowance by way of primage^ tlie freight being so very high ; but as Chap. 4. 
 lie expected great assistance from the master's skill and activity in 
 managing the transport service in that quarter, he agreed that, instead 
 of primage, the master should be allowed one shilling per ton per 
 month on the ship's tonnage. The ship remained in the Mediterranean 
 under this contract for about nine months. The master might have 
 obtained a cargo of merchandise at Smyrna, upon Avliich he would be 
 entitled to a primage of five per cent, on the freight. During the 
 period of this engagement his personal exertions Avere of considerable 
 beneiit to the public service. The wliole of the money was paid by 
 government into the hands of the owner, and the master brought an 
 action against him to recover this allowance. The cause was tried 
 before Lord Ellenborough, Avho said, "It is contended, that a ser- 
 vant, Avho has engaged to devote the whole of his time and attention 
 to my concern, may hire out his scr^aces, or a part of them, to 
 another ! It would have been a different thing, if the owner had 
 been suing for his money ; but I am clearly of opinion that, at all 
 evijnts, the present plaintiff has no right to it. Under this contract 
 he must have been taken from superintending the defendant's ship ; 
 and I don't know how far it might go, if such earnings could be 
 recovered in a court of justice. No man should be allowed to liaA'C 
 an interest against his duty. I Avill assume that the plaintift" obtained 
 as high a freight as possible for his owners, and that his services to 
 government were meritorious ; still, there would be no security in 
 any departmeat of life or business if servants could legally let them- 
 selves out in whole or in part. My opinion upon the subject is quite 
 decisive ; and if it be doubted, I beg that a bill of exceptions may be 
 tendered " {b) . 
 
 No lawyer will doubt the correctness of this opinion. 
 
 Upon principles analogous to those which governed the decision in 
 the case of Thompson v. Havelock, it w'as ruled by Lord Ellen- 
 borough, that a premium received by the master of a ship from the 
 state of the exchange, in respect of a bill drawn by him upon his 
 owners on the ship's account, belonged to the owners ; although it 
 was suggested that, in piactice, the master Avas allowed to retain a 
 profit of this kind for his own use (c) .] 
 
 By 27 & 28 Vict. c. 25 {d), s. 46 ; " if the master or other 
 person having the command of any ship of any of Her Majesty's 
 subjects, under the convoy of any of Her Majesty's ships of war, 
 wilfully disobeys any lawful signal, instruction, or command of the 
 commander of the convoy, or without leave desert the convoy, he 
 shall be liable to be proceeded against in the High Court of Admiralty 
 
 {b) lThompson\.Savelocl,l Ciim\^.b2l. (d) This is an Act for regulating naval 
 
 Upon the recommendation of the chief jus- prize of war, and recites that it is expe- 
 
 ticc, the owner consented to make the dient to enact permanently, _ with amend- 
 
 master some allowance in the nature of nicnts, such provisions concerning naval prize 
 
 primage ; hut he could not have insisted and matters connected therewith, as have 
 
 upon this.] heretofore been usually passed at the begin- 
 
 (c) \_DiplocJc V. Blackburn, 3 Camp. 43.] ning of a war. 
 See Gardner v. M' Cutcheon, 4 Beav. 544.
 
 124 BEHAMOUR OP MASTER AND MAEINEES. 
 
 Part III. at the suit of Her Majesty in Her office of Admiralty, aud upon con- 
 viction to be fined, in the discretion of the court, any sum not exceed- 
 ing 500/., and to suffer imprisonment for such time, not exceeding 
 one year, as the court may adjudge." 
 
 [And it is at all times the master's duty to communicate to his 
 
 owners any occurrence which may lead to a suspicion or doubt that 
 
 his ship' has sustained a damage, lest his owners should lose the 
 
 . benefit of an insurance which they may effect, and he thereby become 
 
 answerable to them (a) .] 
 
 It would be difficult to frame any set of general rules competent to 
 enforce the performance of the civil obligations of a person of this 
 description, and the legislature of this country had until lately, with 
 some exceptions, declined the attempt. 
 
 Such of those duties as relate to the registration of and returns 
 respecting seamen, to the carriage of goods and passengers, the pre- 
 paration for, commencement, course and completion of the voyage, 
 the payment of freight, and the hiring, payment, and discharge of 
 seamen, will be found discussed in other parts of this Treatise, "to 
 which, under the arrangement adopted by the author, they appro- 
 priately belong. Others, relating more particularly to the personal 
 deportment of the master in relation to the mariners, and to the 
 preservation by him of good order and discipline, may be properly 
 noticed here. 
 
 2. Of Offences committed by Master and Mariners, of his Duties 
 respecting them, and his general Duties on board ship. Aut1i07'ity 
 of Master to correct the Mariners. 
 
 [By the common law, the master has authority over all the mariners 
 on board the ship, and it is their duty to obey his commands in all 
 lawful matters relating to the navigation of the ship and the preserva- 
 tion of good order; and such obedience they expressly promise to 
 yield to him by the agreement usually made for their service. In 
 case of disobedience or disorderly conduct, he may lawfully correct 
 them in a reasonable manner ; his authority in this respect being 
 analogous to that of a parent over his child, or of a master over his 
 apprentice or scholar {b) . Such an authority is absolutely necessary 
 to the safety of the ship, and of the lives of the persons on board. 
 But it behoves the master to be veiy careful in the exercise of it, 
 and not to make his parental power a pretext for cruelty and] 
 
 (a) Gladstone v. King, 1 M. & S. 85. dominus in servos velfamiliares. Casaregis, 
 
 {b) Magister navis mercantilis niillam Disc. 136, n. 14, cited by Valiu on French 
 
 habet jurisdictionem in nautas aid gentem Ordinance, torn. 1, p. 449. See also Ordi* 
 
 sucB navis sed quandamtantum ceconomicam nance of Phil. 2, A.D. 1563; 2 Mag. 19 j 
 
 potestatem vel discijjlinam, qucB usque ad Molloy, book 2, c. 3, s. 12 j and the cases 
 
 leoem castigationem, ]pro corrigenda inso- Watson v. Christie, 2 Bos. & Pull. 224; 
 
 lentid et male moratd vita, seu li centid Aitlen \. Bedwell, M. & M. 68; Rhodes v. 
 
 nautaram, et vectorum; quemadmodum earn Leach, 2 Stark, 516; Sannaford v. Ilunn, 
 
 tenet pater injilios, magister in discipulos, 2 C. & P. 148. The master's authority to
 
 2. OFFENCES BY. 125 
 
 [oppression. The framers of the ancient marine ordinances appear Chap. 4. 
 studiously to have avoided the mention of this power. The French 
 ordinance (c) specifies certain particular modes of punishment which 
 the master may inflict on " drunken and disobedient mariners^ and 
 those who ill-treat their comrades^ or commit other like faults in the 
 course of their voyage/' but it requires the consent of the steersman 
 and mate. By the law of England such consent is not required; 
 nevertheless the master should^ except in cases requiring his im- 
 mediate interposition^ take the advice of the persons next below him 
 in authority, as well to prevent the operation of passion in his own 
 breast, as to secure witnesses to the propriety of his conduct : for the 
 master, on his return to this country, may be called upon by action 
 at law to answer to a mariner who has been beaten or imprisoned by 
 him, or by his order, in the course of a voyage; and for the justifica- 
 tion of his conduct, he should be able to show, not only that there 
 was a sufficient cause for chastisement, biit also that the chastisement 
 itself was reasonable and moderate, otherwise the mariner may 
 recover damages proportionate to the injury received (f/).] 
 
 In the Court of Admiralty also, a mariner may obtain redress for 
 an undue exercise of authority on the part of the master by the in- 
 fliction of undeserved or excessive correction {e). This jurisdiction is 
 familiarly exercised by that court, in what are called causes of 
 damage, the judge determining, on consideration of all the circum- 
 stances of the case, the plaintiff's right to maintain the action, and 
 the amount of compensation he is entitled to receive. In estimating 
 the defence of the master to such a suit, the court will give little 
 weight to charges of misconduct of a different character from that 
 which was the immediate occasion of the punishment complained of; 
 but it will not confine its attention to the circumstances of recent 
 offence, where the master can justify himself by proof of similar and 
 habitual misbehaviour (/), 
 
 With respect to the manner of the punishment Avhich may lawfully Punishment 
 be inflicted by the master, the judgment of Lord Stowell, in the j^'^^^'^^^^JJ^^^ ^® 
 case of the Agincourt, above cited, deserves to be inserted here. '' It |jiaster. 
 is hardly to be disputed, '•' says his lordship, " that in a case of gross 
 misbehaviour, the master of a merchant ship has a right to inflict 
 corporal punishment upon the dehnquent mariner. That right must 
 be supported by the law of England, which is the proper authority 
 for fixing the limits within which one subject of this realm has a 
 right to inflict corporal suffering upon another. Upon that ground 
 I dismiss all reference to authorities of foreign maritime law, and I 
 regret that so little upon this subject is to be found in our own. No 
 
 punish exists not only at sea, but also in a corrected him moderately for it. Watson v. 
 
 foreign port or river. Lamb v. Burnett, 1 Christie, 4 Bos. & P. 224.] 
 
 C. & J. 291. (e) The Muckers, 4 Rob. Ad. Eep. 73. 
 
 (c) Liv. 2, tit. 1 : Du Capitaine, art. 22. The Agincourt, 1 Hagg. 271. Lowther 
 
 (rf) [To an action of this sort, the master Castle, 1 Hagg. 384. The Enchantress, 
 
 must plead specially that the plaintiff com- 1 Hagg. 395. The Centurion, 1 Hagg. 161. 
 
 mitted such a particular fault, and that he (/) See the cases of the AgincouH and 
 
 the Lowther Castle.
 
 126 BEHAVIOUR OF MASTEE AXJ). MARIXEE8. 
 
 Part III. statutable regulations exist upon tins subject. The statute relating 
 — — to merchant seamen is silent upon it {a). The only authorities are 
 supplied by the decisions of the courts of law^ acting upon considera- 
 tions of necessity and just discretion; and upon such grounds I think 
 the following rules may be considered as sufficiently established. In 
 the first place_, that the punishment must be applied with due modera- 
 tion. It is asserted, in some well-considered books, that the law gives 
 the same authority to the captain of a merchant ship to chastise his 
 mariners for misbehaviour J as a master possesses over his apprentices; 
 meaning that it is inherent in him, upon the same grounds of necessity 
 and sound discretion in the one case as in the other; not, certainly, 
 to be used exactly in the way of an equal measure of punishment, 
 because the apprentice is generally a youth of comparatively tender 
 years, and whose acts of misbehaviour can hardly produce the same 
 destructive consequences as may attend the negligence of the mariner 
 — an experienced person, of confirmed strength, capable of sustaining 
 a severer infliction than could properly be inflicted on a stripling, and 
 whose acts even of negligence may draw after them consequences 
 fatal to all the lives and all the property on board. It is hardly 
 necessary to add as a corollarv, that in all cases Avhicli will admit of 
 the delay proper for inquiry, due inquiry should precede the act of 
 punishment ; and, therefore, that the party charged should have the 
 benefit of that rule of universal justice, and of being heard in his own 
 defence. A punishment inflicted without the allowance of such 
 benefit is in itself a gross violation of justice. There are cases, 
 undoubtedly, which neither require nor admit of such a deliberate 
 procedure. Such are cases where the criminal facts expose themselves 
 to general notoriety, by the public manner in which they are com- 
 mitted, or where the necessity occurs of immediately opposing at- 
 tempted acts of violence by a prompt reaction of lawful force, as in 
 the disorders of a commencing mutiny. These are cases that speak 
 for themselves, and are of unavoidable dispensation. It may be 
 matter of prudence, but it is not matter of strict obligation in vessels 
 of this kind, that the captain should communicate with other officers 
 of the vessel ; nor do I find that any particular mode or instrument 
 of punishment has received a particular recognition : that must be 
 left to the common usage practised in such cases, and to the humane 
 discretion of the person who has the right of commanding its 
 application^'' {b). 
 
 To this may be added, that disorder, disobedience, and mutiny, 
 the offences which are most likelv to call for the exercise of the 
 
 (a) 2 Geo. 2, c. 36, now repealed. aud have the result of it entered on the log. 
 
 lb) " By the common law," said Chief It is his duty, because, by availing himself 
 
 Justice TixDAL, "a similar power of mode- of the advice of others, he prevents himself 
 
 rate chastisement is given to the captain of from acting solely on his own feelings, which 
 
 a ship, as there is to a parent aud a school- may be excitetl ; and it is his interest, be- 
 
 master. Lord Texterdex often observed, cause it furnishes evidence in his favour, 
 
 that it was always desirable, and indeed the to be used ou the day of trial." Murray v. 
 
 duty of the captain, to institute an inquiry, Moufrie, 6 C. & P. -iTl. He is not bound to
 
 2. OPFENCES BY. 127 
 
 master^s authority to inflict personal punishment^ may not un- Chap. 4. 
 frequently be caused or aggravated by his own indiscretion and mis- """ 
 conduct. He ought not to be extreme to mark what is done amiss [c). 
 The law enjoins upon him a temperate demeanor and decent conduct 
 towards seamen. He is finable^ by many of the sea laws, for abusive 
 expressions (d) ; and though hasty words employed by him on occa- 
 sions of emergency and excitement, Avill be considered excusable, 
 violent language used at the time of the correction, which is chal- 
 lenged, may indicate an undue violence of temper, and render him 
 liable to be admonished : " that passion is not to be indulged in the 
 infliction of punishment, and that he Avho has to command others 
 shoidd also command himself^'' (e). 
 
 [If the master strike a mariner without cause, or use a deadly 
 weapon as an instrument of correction where moderate correction 
 may be inflicted, and death ensue, he will be guilty either of man- 
 slaughter or murder (/), according to the rules and distinctions of 
 the criminal law of England in analogous cases, all of which are 
 applicable to persons in this situation. In the case of actual and open 
 mutiny by the crew, or any part of them, the resistance of the master 
 becomes an act of self-defence, and is to be considered in all its 
 consequences from that point of view. The ordinances of Oleron {g) 
 and Wisbuy {h) declare that a mariner who strikes the master 
 shall either pay a fine or lose his right-hand : a strange as well 
 as cruel alternative, unknown in the modern jurisprudence of this 
 country. 
 
 But although the master may by force restrain the commission of 
 great crimes, he has no judicial authority to punish the criminal, but 
 ought to secure his person, and cause him to be brought before a 
 proper tribunal of his country (i)] . 
 
 All offences against property or person, committed in any place, OfEences 
 ashore or afloat, out of Her Majesty's dominions, by any master, '^'^"^^'*^*^'\^j. ,^ 
 seaman, or apprentice, who at the time when the off'ence is com- dominions, &c. 
 mitted is, or within three months previously has been, employed in 
 any British ship, are to be deemed of the same nature, and to be 
 tried and punished in the same manner, and subject to the same 
 directions, as respects the costs of prosecution, as if such off'ences 
 had been committed within the jurisdiction of the Admiralty of 
 England {k). 
 
 On complaint made to any British consular officer of any such 
 off'ences or of any offence committed on the high seas, he is autho- 
 
 wait for au actual act of mutiny, but may (/) Ccqyiain Kidd's case, 5 State Trials, 
 
 use violence to prevent it, althougrli it be 287. 
 
 only threatened. The Lima, 3 Hasjg. 346; (g) Art. 12. 
 
 and see Bingham v. Ganiault, Bull, N. P. (A) Art. 24. 
 
 yj^ (i) [Hanseatic Ordinance, art. 30; French 
 
 '(c) Xew Phoenix, 1 Kagg. 199. Ordinance, book 2, tit. 1; Du Capitaine, 
 
 (d) Judge Story's Xotes to the American art. 23 ; Eoccus, Not 8.] 
 
 edition, p. 137. (^-) 17 & 18 ^'i^-t- ^ 104, s. 267. See 
 
 (e) The Agincourt, 1 Hagg. 290. the note there as to where offences com- 
 
 mitted on the high seas may be tried.
 
 ]28 BEHAVIOUK OP MASTER AND MAEINEES. 
 
 Part III. rized to inquire into the case on oath^ and to take such steps as are 
 
 — in his power for placing the offender under necessary restraint, and 
 
 sending him as soon as practicable to the United Kingdom, or to 
 
 any British possession in which there is a court capable of taking 
 
 cognizance of his offence (a) . 
 
 And any master of any ship belonging to a British subject, who, 
 when required by any British consular officer to receive and afford a 
 passage and subsistence to any offender or Avitness (at a rate not 
 exceeding one offender for every hundred tons of his ship's registered 
 tonnage, and one witness for every fifty tons of such tonnage), does 
 not receive him, or does not deliver any offender committed to his 
 charge into the custody of some police officer or constable, to be 
 taken before a justice of the peace, or other magistrate by law 
 empowered to deal with the matter, is liable to a penalty of 50/. {b) . 
 
 For detailed information respecting the constitution, jurisdiction, 
 and mode of proceeding of " Naval Courts," which any officer of 
 any ship of Her Majesty on any foreign station, or in the absence 
 of such officer, any consular officer, is empowered to summon, 
 wherever the interest of any owner of any British ship or of its 
 cargo appears to him to require it, or a complaint which appears 
 to him to require immediate investigation is made to him by the 
 master of any British ship, or by any certificated mate, or by one 
 or more of the seamen belonging to any such ship, the reader is 
 referred to the statute (c) . 
 
 It may suffice in this place to notice that such courts have power 
 to try the master or any of the crew of the ship for any offences 
 against the "Merchant Shipping Act, 1854," 17 & 18 Vict. c. 104, 
 in respect of which two justices, if the case were tried in the United 
 Kingdom, would have power to contact summarily, and to inflict the 
 same punishments for such offences which two justices might inflict 
 upon summary conviction (d) ; and are authorized, if unanimous 
 that the safety of the ship or crew, or the interest of the owner 
 absolutely requires it, to supersede the master, and (with the consent 
 of the consignee of the ship, if then at the place) to appoint another 
 in his stead. 
 
 They may also discharge seamen, or order the forfeiture of their 
 wages or compensation out of them to the owner of the ship, decide 
 disputes as to wages, and order the costs of the imprisonment and 
 maintenance while imprisoned, of any seaman or apprentice in a 
 foreign port, to be paid out of or deducted from his wages earned or 
 to be earned. 
 
 All orders made by any such naval court are to be signed by its 
 president, and entered, wherever it is practicable, in the official log- 
 book of the ship [e] . 
 
 (a) 17 & 18 Vict. c. 104, s. 268. See Vict. c. 110, s. 8. As to the power of Naval 
 
 note to sect. 267. ^.ucl Admiralty Courts to remove master, 
 
 (i) Ibid. see 17 & 18 Vict. c. 104, ss. 240, 263. 
 
 (e) 17 & 18 Vict. c. 104, ss. 260—266 ; (d) 18 & 19 Vict. c. 91. 
 
 8ud see 18 & 19 Vict. c. 91, s. 18 ; 34 & 35 (e) 17 & 18 Vict. c. 104, ss. 264, 265.
 
 2. OFFENCES BY — OFFICIAL LOG-BOOK. 129 
 
 The keeping of this official log-book is one of the most important Chap. 4. 
 
 of the duties which are obligatory by express enactment upon the . 
 
 master of every British ship^ except ships employed exclusively in boor'* *'^" 
 trading between ports on the coasts of the United Kingdom. It 
 may be kept distinct from the ordinary ship's log or united there- 
 with, so that it be in the appropriate form sanctioned by the Board 
 of Trade, and that the blanks in such form be duly filled up. 
 
 The enumeration in the statute of the matters of which entries are 
 required to be made, includes convictions, offences, punishments, 
 statements relating to the conduct and character of the crews, 
 illnesses and injuries, deaths, births, marriages, the name of every 
 seaman ceasing otherwise than by death to be a member of the 
 crew, with the place, time, manner and cause thereof ; wages of men 
 entering the navy, wages of deceased seamen, sale of deceased men's 
 effects, collisions ; in short, almost every occurrence which can happen 
 in the course of a voyage to affect the interest, personal or pecuniary, 
 of the owner, master, and seamen, the discipline and safety of the 
 ship, or the ends of justice. 
 
 These entries are to be made as soon as possible after the occur- 
 rence to which they relate, and if not on the same day as the occur- 
 rence, in such a manner as to show the date of it, and of the entry 
 respecting it ; and no entry, under a penalty of 30/. on every person 
 who makes, procures, or assists in making it, in respect of any 
 occurrence happening previously to the arrival of the ship at her 
 final port of discharge, shall be made more than twenty-four hours 
 after such arrival (/). 
 
 They are to be signed by the master and the mate, or some other 
 of the crew ; and if they be entries of illness, injury, or death, by the 
 surgeon or medical practitioner on board [g). 
 
 The observance by the master of these regulations is enforced by 
 penalties (A) ; and any person who wilfully destroys, mutilates, or 
 renders illegible any entry, or makes, procures, or assists in making 
 any false or fraudulent entry or omission in any log-book, is declared 
 guilty of a misdemeanor [i). 
 
 The official log-books are to be transmitted by the masters of 
 home-trade ships, not exclusively employed in trading between ports 
 on the coasts of the U.K., half-yearly, to some shipping master : 
 and by masters of foreign-going ships, within 48 hours after their 
 arrival at their final port of destination in the U.K , or upon 
 the discharge of their crew, which shall first happpen, to the 
 superintendent of the mercantile marine office before whom the 
 crew is discharged, under a penalty upon the master of 5/. for each 
 default {k) . 
 
 Within one month, if the ship be in the United Kingdom, or if 
 elsewhere within six months, after any ship has ceased, by reason of 
 
 (/)_ Sects. 244, 281— 284. As to record- (A) Sect. 284. 
 
 ing births and deaths m log book, see \i) Ibid. 
 
 37 & 38 Vict. c. 88, s. 37. \k) Sects. 286, 274. 
 
 {g) Sect. 283.
 
 130 BEHAVIOUE OF MASTER AND MAEINEES. 
 
 Part III. transfer of ownersliip or change of employment, to fall within the 
 
 definition of a foreign-going or home-trade ship, and in case of loss 
 
 or abandonment as soon as possible after such event, the master or 
 owner is required under a penalty of TO/, to deliver or transmit the 
 official log-book, duly made out to the time at which she ceased to 
 be a foreign-going, or home-trade ship, or to the time of such loss or 
 abandonment, to the superintendent of the mercantile marine office 
 at the port to which the ship belonged (a) . 
 
 3. Regulations of Foreign Ordinances as to disposal of Ship's 
 
 Provisions. 
 
 By the French ordinance {b), the master is prohibited, under pain 
 of corporal punishment, from concealing, diverting, or selling any 
 portion of the victuals of the ship, except to vessels which he may 
 meet in the open sea, in a state of pressing necessity. Their wants 
 he may, with the advice of his officers, relieve, provided he retain 
 sufficient for his own voyage, and account to his owners for the pro- 
 ceeds of the ^dctuals sold. The ordinance of the Hanse Towns con- 
 tains a provision to the like effect ; and Yalin {c} tells us that it 
 extends not only to friends, but also to enemies, in the same manner 
 as in shipwreck, or in battle, it is a duty to save the life of an enemy 
 Avhich has become the sport of the sea, or otherwise in danger of 
 perishing. This, however, is a purely moral obligation, not founded 
 on any positive lavv^, nor compulsory on the master. The Court of 
 Admiralty, until lately, had no power of remunerating for the pre- 
 servation of life (d), all exertions for that object being left to the 
 bounty of individuals. By the Rhodian law, also, the master may, in 
 case of need, compel any individuals on board his ship to surrender 
 for the common use such victuals as they may have — " Utique tamen 
 lion gratis, ut nihil restitui necesse sit, sed cum onere resiiiuendi ubi 
 necessitas cessaverit" (e). The French ordinance and the Code de 
 Commerce (/) also recognise this right and the duty of restitution. 
 
 4. Of Breaches of Dutt/ by the Mariners. Desertion, Miitimj, 
 Disobedience, ^'c. 
 
 Duties of By the terms of the agreement (g) into which the master of every 
 
 mariners. ship, except {h) ships of Icss than eighty tons registered tonnage 
 
 exclusively employed in trading between different ports on the coasts 
 
 (a) Sect. 287. (e) Viunius, cited by Valin, supra. 
 
 (b) Ordonnauce, liv. 2, arts. 32, 33. (/) Code de Com. art. 349. 
 (e) Valin, liv. 2, tit. 1 : Du Capitainc. {ff) See Appendix. 
 
 (d) The Aid, 1 Hago;. 83. 17 & 18 Viet. (A) Sect. 149. 
 C. 104, s. 460, 2>ost " Salvage."
 
 4. BEEACHES OP DUTY BY MARINERS. 131 
 
 of the United Kingdom, is hound to enter with every seaman whom Chap. 4. 
 he carries to sea, the latter undertakes to serve on board the ship dur- 
 ing the voyage described in it, and to conduct himself in an orderly^ 
 faithful_, honest, and sober manner ; to be at all times diligent in his 
 duty, and obedient to the lawful commands of the master, or of 
 any person who shall succeed him, and of their superior officers, in 
 everything relating to the ship, &c. ; an engagement which seems to 
 comprise all the general duties of a mariner to his employers. The 
 breach of these duties and of tliis engagement consists in desertion, 
 quarrelsomeness, turbulence, mutiny, disobedience, neglect of duty, 
 drunkenness — offences which, according to the frequency of their 
 occurrence, the length of their continuance, and their circumstances 
 in each particular case, besides the penalties and forfeitures enacted 
 by the statutes, may at common law justify the personal restraint and 
 correction of the mariner, or subject him to dismissal and forfeiture 
 of wages. It may happen, that the regulations prescribed by the 
 statutes, to protect the mariner against an undue infliction of for- 
 feitures, such as the entry in the log-book of the circumstances 
 attending the alleged offence, have not been complied with by the 
 master ; and in such a case, although the statutory forfeitures may 
 not be incurred, yet proof of the mariner^s misconduct, may furnish 
 a defence to an action brought by him for his wages against the 
 master or owners. 
 
 The voyage once commenced, it is his duty, not only to navigate 
 the ship in favourable weather, but to protect her in adverse weather 
 through all perils; and even in shipwreck, to exert himself to save 
 as much of her and her cargo as he can. However courageously or 
 efficiently this duty may have been performed, or however great the 
 danger he may have incurred, he is entitled to no extraordinary 
 remuneration. He has only discharged his covenanted allegiance to 
 the vessel, which he contemplated and pledged himself to give in the 
 very formation of the contract which gave his title to the stipulated 
 wages. The ship, on the other hand, is pledged to him. Even 
 when she has gone to pieces, he is not at liberty to depart from the 
 shore where the mischance has been encountered : " He has a right 
 to cling to the last plank in satisfaction of his wages ^^ (i), and is 
 bound to stand by and obey the master as long as there remains, 
 in his judgment, a prospect of recovering any part of the ship or of 
 the cargo. 
 
 In case of a contract for a voyage out and home, or to touch at 
 several ports, the mariners are bound to take care of the vessel, and 
 assist in the stowage and delivery of the cargo at the several ports to 
 
 (0 The St/dney Cove, 2 Bods. Adm. wages is put upon the ground of a qualified 
 
 Rep. 13. The Neptune, 1 Hagg. Adm. R. salvage. See Judge Stoey's note to the 
 
 227. XafZj/ Z>«M«/», 3 Hagg. Adm. R.196. American edition, p. 452. See, as to the 
 
 It would seem from these decisions that the practice in England, Weskett, Insur. tit. 
 
 case of shipwreck was an exception to the Wages, art. 17. See iwst. Part V, ch. 2. 
 
 rule that freight is the mother of wages. As to when the crew cau claim for salvage. 
 
 In the American Courts, the lien of seamen seeposf, " Salvage." 
 on property saved from shipwreck for their
 
 132 BEHAVIOUR OF MASTER AND MARINERS. 
 
 Part III. "which the voyage as described in the article extends {a). "When 
 arrived at the port of final destination, the voyage, within the mean- 
 ing o£ the contract, is not concluded hy the mere fact of arrival. 
 The act of mooring is an act to be done by the crew. 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 
 the maritime law accounts as a desertion the departure, without 
 just cause, of the mariners from the vessel until the cargo be actually 
 delivered {b) . 
 Desertion. If the master propose to take the vessel on a voyage not within the 
 
 articles, the mariners may leave the ship without being guilty of deser- 
 tion (c). The words "or elsewhere^' in ships articles, said Lord 
 Stowell, "must receive a reasonable construction, conformable to 
 the necessities of commerce ; they are not to be taken in the indefi- 
 nite latitude in which they are expressed. They are no description 
 of a voyage ; they are an unlimited description of the navigable globe, 
 and are not to be admitted as a universal alibi for the whole world, 
 including the most remote and even pestilential shores" {d) . 
 
 Want of provisions will justify the seaman in leaving the ship. He 
 must be found with food so long as he remains on board and is 
 willing to do his duty ; and if it be not supplied, he is at liberty to 
 seek it elsewhere. " The men," said Lord Stowell, in the case of 
 the Castilia (e), had no breakfast, and there was the same prospect 
 as to dinner : their departure was therefore justified." 
 
 IMisconduct and ill-treatment on the part of the master may also 
 justify desertion. The duties of the mariners and the master are 
 reciprocal : from the former are due, obedience and respect — from 
 the latter, protection and good treatment. '' Desertion," said Lord 
 Kenyon, " is a forfeiture of wages ; but if the captain conducts 
 himself in such a way as puts the sailor in that situation that he 
 cannot, without damage to his personal safety, continue in his ser- 
 vice, human nature speaks the language — a servant is justified in 
 providing for that safety " (/) . The Courts of Admiralty and of 
 common law will consider with indulgence to the seaman all the cir- 
 cumstances of each case ; what his intention was at the time, and 
 what excuse he may have for the absence, which is alleged to have 
 been desertion. Thus, where two seamen, having obtained leave to 
 go on shore at Dominica, on condition that they returned at " gun- 
 fire or sun-set in the evening," went to a place of entertainment, got 
 very di'unk, slept all night under the table, never heard the gun fire, 
 
 (a) The Camlridge, 2 Hagg. Adm. Rep. {cC) The Mitierva, 1 Hagg. 356. See the 
 243. observations of Dr. Lushington in the case 
 
 (b) The Salfic Merchant, Edw. Adm. of the Westmoreland, 1 Wm. Rob. 216. 
 Rep. 86. The Test, 3 Hagg. 307. (e) 1 Hagg. 59. See the Eliza, 1 Hagg. 
 
 (e) The Countess of Harcourt, 1 Hagg. 182. 
 
 248. The Cambridge, 2 Hagg. 243. But (/) Linland v. Stephens, 3 Esp. Rep. 
 
 they cannot compel him to continue the 269; andsee-Erfwar^^v. IVei;eZKc*,4E. &B. 
 
 voyage designated : per Lord Stowell in 59 ; 24 L. J. Q. B. 9. 
 the Elizabeth, 2 Dods. 408. The Eliza, 1 
 Hagg. 182. The Minerva, 1 Hagg. 347.
 
 4. BREACHES OP DUTY BY MARINERS. 133 
 
 ■were drunk all next day and nighty and were then taken before a Chap. 4. 
 magistrate^ and charged with desertion, Lord Stowell said [g), 
 " This conduct of theirs was criminal, and as such a just subject of 
 punishment ; but as to the crime of desertion, it no more resembles 
 that, than it does a robbery or a murder. They had left all their 
 clothes on board, and made no preparation, and their conduct on 
 shore was the very reverse of what must have been the conduct of 
 men meditating an escape." An action by a seaman for his wages 
 was defended on the ground of desertion. It appeared that the 
 plaintiff with other seamen had come on shore in a boat with some 
 officers, and on being required to return to the ship, they said they 
 had had no victuals for the whole day, and requested to stay till they 
 had had some. This being refused, they remained on shore, and went 
 to the ship the next morning, when the master dismissed them, and 
 refused to pay their wages. Lord Eldon [h) said, " The question 
 here is, Is this a desertion ? I am of opinion that it is not. The 
 plaintiff and the other seamen only requested to be permitted to 
 remain on shore to have some victuals. It svas a reasonable request. 
 They had no intention of abandoning the ship ; they, in fact, went on 
 board as soon as they had the means, and were refused to be received. 
 After thus offering to return to their duty, the captain shall not be 
 permitted to call such conduct a desertion, when the whole conduct 
 of the plaintiff showed that no such act was intended." Again, in 
 the case of the Frederick (i), a suit for seaman^s wages, the owners 
 put in a defensive allegation that the plaintiff, with five other 
 mariners, got intoxicated with rum, clandestinely procured; that 
 they quarrelled with the steward and the mate for not giving them 
 more ; and made the same demand on the captain in a violent and 
 turbulent manner. Being desired to go to bed and put out the lights, 
 they refused to obey ; and the captain told the ringleader that if he 
 was dissatisfied he might go on shore, which he said he would do. 
 The others then said, if one went all would go ; and the captain 
 ordered the second mate to go in the boat with them. It was alleged 
 that he did not in any way discharge them, and that they were guilty 
 of mutiny and desertion. But Lord Stowell, in commenting on 
 the evidence said, " I am bound to notice that the captain admits he 
 was so irritated that he cannot depend exactly upon his memory of 
 what passed ; that the principal mate, a witness of great credit, goes 
 no further than to say, that the captain did not formally discharge 
 them; leading, by the use of this wfovA formally , to a conjecture that 
 there might still be something said which these men, with a willing- 
 ness of interpretation on their side, might construe into an actual 
 liberty to depart — a Uceat migrare. And if his words were such as 
 might be so understood, it would be a little hard, I think, to stamp 
 that misinterpretation with the guilt of absolute mutiny and deser- 
 
 {g) The Ealing Grove,2 Hagg. 15. The (/t) Sigard v. Roberts, 3 Esp. Rep. 71. 
 
 Susan, ibid. 229. The Ladi/ Campbell, See the Westmoreland, 1 Wm. Rob. 216. 
 2 Hagg. 5. The 3Iacta, 2 'Hagg. 158. (») 1 Hagg. 211. Edioards y, TreveU 
 
 Eenno v. Bennett, 3 Q. B. 768. lick, 4 E. & B. 59.
 
 134 BEHAVIOUR or MASTEE AND MAEINEES. 
 
 Part III. tion/^ But an absence originally permissive may become a deser- 
 tioii, if tlie mariner, when required to do so_, refuses to return to the 
 ship (o). And on the other hand, a clear case of desertion may be 
 mitigated into the less offence of temporary absence, if at the time 
 not treated by the master as a desertion {b), or by his subsequent 
 condonation. 
 
 Leaving the ship for the purpose of entering into the navy is not 
 
 a desertion (c) . 
 
 Proceedings By 1/ & 18 Vict. c. 104, it is provided tliat any seaman or 
 
 meii'abseutine ^PP^'cntice -svlio neglects or refuses to proceed to sea in any ship in 
 
 themselves. which he is engaged to serve, or absents himself without leave, may, 
 
 at home or abroad, (if the laws permit) be apprehended without 
 
 warrant by the master, mate, owner, ship^s husband, or consignee, 
 
 and be thereupon (if the seaman requires it) conveyed before some 
 
 court capable of taking cognizance of the matter, and detained for 
 
 that purpose for a period not exceeding twenty-four hours ; or if he 
 
 does not require it, or there be no such court, be conveyed at once 
 
 on board {d). 
 
 If such apprehension appears to the court before which the case is 
 brought to have been made on improper or insufficient grounds, the 
 persons so making or causing it to be made incur a penalty not 
 exceeding 20/., which, if inflicted, is to be a bar to an action against 
 them for false imprisonment (e) . 
 
 The court before which a seaman is so brought may, if the master 
 or owner or his agent so require, instead of committing the offender 
 to prison, cause him to be conveyed on board for the purpose of pro- 
 ceeding on the voyage, and direct any expenses properly incurred 
 by the master or owner to be paid by, or deducted from the wages he 
 has earned, or may under his existing engagement earn (/). 
 
 Seamen imprisoned for the offences above-mentioned, or for any 
 other breach of discipline, may, before the termination of the period 
 of their imprisonment, at the request of the master or owner, or his 
 agent, be ordered by any justice of the peace to be conveyed on 
 board the ships in which they have engaged to serve, for the purpose 
 of proceeding on the voyage {(/) . 
 
 Any competent tribunal, before which any seaman or apprentice, 
 in any proceeding relating to the seamen^s wages, has in the course of 
 the voyage been convicted and rightfully punished, may direct a part 
 of his wages, not exceeding 3/., to be applied in reimbursing any 
 costs properly incurred by the master in procuring such conviction 
 and punishment (/<) . 
 
 The Act contains other provisions for facilitating the proof of 
 desertion, so far as concerns forfeitures of wages {i) ; for ascertaining 
 
 (a) The Buhner, 1 Hagg. 163. (d) Sect. 246. See sect. 243, post, 136. 
 
 (h) MiUer V. Brant, 2 Campb. 590. (e) Sect. 246. 
 
 Bealev. Thompson, 4. 'E,&%t,MQ. If a sea- (/) Sect. 247. 
 
 man through his own negligence is left {g) Sect. 248. 
 
 behind at a foreign port, this is not descr- (A) Sect. 251. 
 
 tion, Button v. Thompson, L. K. 4 C. P. 330. {i) Sects. 249, 250. 
 
 (c) 17 & 18 Vict. c. 104, s. 214. The 
 Amphytrite, 2 Hagg. 403.
 
 4. BEEACHES OP DUTY BY MARINERS. 135 
 
 the amount of forfeitures for desertion in the case of contracts for Chap. 4. 
 wages by the voyage, run, or share (k) ; and for their application to 
 the reimbursement of the expenses occasioned by such desertion to 
 the master or owner of the ship from which the desertion has taken 
 place (/) . 
 
 It provides also that any question concerning the forfeiture of, or 
 deductions from, the wages of any seaman or apprentice, may be 
 determined in any proceeding lawfully instituted with respect to such 
 wages, notwithstanding that the offence, though punishable by im- 
 prisonment as well as forfeiture, has not been made the subject of 
 any criminal proceeding (;«) . 
 
 Upon sections 19 and 257, it has been held that to convict under 
 the second of those sections of the offence of knowingly harbouring a 
 seaman who has deserted, the ship must be shown to be British {n). 
 
 With respect to the other offences before-mentioned the reader Drunkeuuess 
 may be referred to the judgment of the Court of Admiralty in the ^^}'^ 
 case of Robinett v. the Ship Exeter (o), a suit for wages, brought by f^^sobcdience. 
 the mate, who had been hired by the captain at Bombay, and dis- 
 charged in the course of the ship^s voyage to Europe, at Colombo, 
 on a charge of incapacity, drunkenness, neglect, and disobedience of 
 orders. '^ Upon the matter of drunkenness,-" said Lord Stowell, 
 " the court will be no apologist for that ; it is an offence peculiarly 
 noxious on board a ship, where the sober and vigilant attention of 
 every man, and particularly of officers, is required. At the same 
 time, the court cannot entirely forget that, in a mode of life 
 peculiarly exposed to severe peril and exertion, and therefore ad- 
 mitting in seasons of repose something of indulgence and refresh- 
 ment, indulgence and refreshment are naturally enough sought by 
 such persons in grosser pleasures of that kind ; and therefore that 
 the proof of a single act of intemperance committed in port is no 
 conclusive proof of disability for general maritime employment. 
 Another rule would, I fear, \lisable many very useful men for the 
 maritime service of their country. 
 
 " As to disobedience to lawful command, it is an offence of the 
 highest kind; the court will be particularly attentive to preserve 
 that subordination and discipline on board of ship which is so 
 indispensably necessary for the preservation of the whole service, and 
 of every person concerned in it. A peremptory or harsh tone, or an 
 overcharged manner, in the exercise of authority, Avill never be held 
 by this court to justify resistance. It will not be sufficient that there 
 has been a want of that personal attention and civility which usually 
 take place on other occasions and might be wished generally to 
 attend the exercise of authority. The nature of the service requires 
 that those persons who engage in it should accommodate themselves 
 to the circumstances attending it, and those circumstances are not 
 unfrequently urgent, and create strong sensations, which natui'ally 
 
 (/t) Sect. 252 J sect. 181. («) Leaiy v. Llo>/d, 29 L. J. M. C. 194. 
 
 (Z) Sect. 253 ; sect. 171. (o) 2 Rob. Adrn. Rep. 261. 
 
 (/») Sect. 254.
 
 136 BEHAVIOUR OF MASTEE AND MABINEES. 
 
 Part III. find their way in strong expressions and violent demeanour. The 
 
 persons subject to this species of authority are not to be captious^ or 
 
 to take exception to a neglect of formal ceremonious observances of 
 behaviour; and on these grounds the court Avould hold that the 
 charges of this defence are of a nature sufficient to justify dismissal 
 if they are properly substantiated in evidence^ although it might at 
 the same time be proved that less personal civility had been used 
 than -would excuse something of an hesitation of obedience in other 
 modes of life/' 
 
 By 17 & 18 Vict, c. 104, any master of, or any seaman or appren- 
 tice belonging to any British ship, who by wilful breach of duty, or 
 by neglect of duty, or drunkenness, does any act tending to the imme- 
 diate loss, destruction, or serious damage of the ship, or immediately 
 to endanger the life or limb of any person belonging to the ship or 
 on board, or who by wilful breach or neglect of duty, or by reason 
 of drunkenness, refuses or omits to do any lawful act proper and 
 requisite to be done by him for preventing loss, destruction, damage, 
 or danger of this description, is guilty of a misdemeanor (a) . 
 
 And any seaman lawfully engaged, or any apprentice to the sea 
 service, who is guilty of desertion or neglect, or of refusing to join 
 or to proceed to sea ; of absence within twenty-four hours before 
 sailing ; of absence without leave ; of quitting without leave before 
 the ship is secured ; of wilful disobedience ; of continued wilful dis- 
 obedience or neglect of duty, assault on officers, combining to dis- 
 obey, wilful damage or embezzlement, or of acts of smuggling,, causing 
 loss to the owners, shall be liable to be punished summarily in the 
 mode specially authorized in respect of each of such offences by the 
 Act of Parliament {b) . 
 Entry of Upon the commission of any of these offences, an entry thereof is 
 
 book^^ ^° ^^* to be made in the official log-book, and signed by the master and the 
 mate, or one of the crew ; and the offender is to be furnished with a 
 copy of such entry, or to have the same read to him, and may make 
 such reply as he thinks fit ; and the fact of such copy being so fur- 
 nished, or of the entry being so read, and of his reply, shall likewise 
 be entered and signed as aforesaid. And in any subsequent legal 
 proceeding, the entries shall, if practicable, be produced, or proved, 
 and in default thereof, the court by which the case is heard may, at 
 its discretion, refuse to receive evidence of the offence (c) . 
 
 {a) Sect. 239. when ship luiseaworthy, see 34. & 35 Vict. 
 
 (J) Sect. 243; as to eeamen's remedy c. 110, s. 7; and 39 & 40 Vict. c. 80. 
 
 (c) Sect. 245 ; sect. 238.
 
 OF BARRATRY. 137 
 
 Chap. 5. 
 
 CHAPTER V. 
 
 OF BARRATRY. 
 
 Sect. 1. Definition of Bar r airy, p. 137. 
 
 2. Acts of Barratry punishaile hy Statute, p. 138. 
 
 3. Barratrouft Disposal of Ship and Cargo, p. 139. 
 
 4. Not resisting Pirates, p. 139. 
 
 1. Definition of Barratry . 
 
 [The term Barratry, which is often used as well by foreign writers 
 as those of our own nation, is generally understood in this and in 
 most other countries, to denote a fraudulent act of the master or 
 mariners committed to the prej udice of the owners of the ship {d) . 
 In France, it is often used in a more enlarged sense, and comprehends 
 acts of mere ignorance or unskilfulness not accompanied with a frau- 
 dulent design] . 
 
 To our definition of barratry, it is not essential that the act should 
 be done by the master for his own benefit, or with the intent of 
 injuring his owners. Thus, if he sail out of port without paying port 
 duties, whereby the goods are forfeited, lost, or spoiled (e) ; or if he 
 cruise in quest of prizes Avithout proper authority, and contrary to 
 the orders of his owners (/) ; or if he disregard an embargo {g) ; or 
 attempt a breach of a blockade [h) ; or be concerned in smuggling; 
 or connive at smuggling by his mariners (i) ; or wilfully delay, or 
 deviate, or run away with the ship (k) , and sell her or her cargo, or 
 part of it {I), or run the ship ashore without any justifiable cause {m), 
 he is guilty of barratry. And where a master had general instruc- 
 tions to make the best purchases with despatch, it was considered 
 that such instructions must mean legal purchases and legal despatch, 
 and that going into an enemy's settlement to trade, although his 
 cargo could be more speedily and cheaply completed there (the ship 
 being seized and confiscated on account of it), was barratry {n) . Nor 
 
 (c^) [Emerigon, torn. 1, 366.] Seethe (i) Lockyer v. OJley, IT. B. 252. Pipon 
 
 cases, Marshall's Law of Insurance, 5th v. Cope, 1 Campb. 434. Potvell v. Syde, 
 
 ed., by Shee, 409. 5 E. & B. 607. 
 
 (e) ' In Knight v. Cambridge, 1 Stra. 581 ; (k) Vallejo v. Wheeler, Cowp. 143. Bos- 
 
 2 Lord Raym. 1349. Stamma v. Brown, cow v. Corson, 8 Taunt. 684. 
 
 2 Strange, 1174. Mton v. Brogden, ibid. {I) Dixon v. Reed, 5 B. & A. 597- Tout- 
 
 1264. Phyn v. Eoyal Exchange Assur- min v. Anderson, 1 Taunt. 227. 
 
 ance Company, 7 T. R. 505. (m) Soares v. Thornton, 3 T. R. 227. 
 
 (/) Moss V. Byrom, 6 T. R. 379. (w) Earle v. Eowcroft, 8 East, 126. Wil- 
 
 \g) Bobinson v. Ewer, 1 T. R. 127. son v. Rankin, 6 B. & S. 208; L. R. 1 
 
 Ik) Qoldschmidt v. Whitmore, 3 Taunt. Q. B. 162. 
 608. Everth v. Hannam, 6 Taunt. 375.
 
 138 
 
 OF BAEEATEY. 
 
 Part in. was it thought to make any difference^ that he intended thereby to 
 promote his owners' interest. It is not for him to judge in cases not 
 entrusted to his discretion_, or to suppose that he is not breaking the 
 trust reposed in him, but acting meritoriously, when he endeavours 
 to advance the interests of his owners by means which the law 
 forbids, and Avhich his owners must be taken to have forbidden, not 
 only from what ought to be, and therefore must be presumed to 
 have been, their o'^vn sense of public duty, but also from a considera- 
 tion of the risk and loss likely to follow from the use of such means. 
 But an error of judgment in matters entrusted to his discretion, and 
 not contrary to law, admits of a different consideration ; and accord- 
 ingly, when in an action on a policy of insurance, the loss being 
 alleged by barratry of the master, it appeared that his ship having 
 sprung a leak, he took her into port, and before any survey made, 
 broke uj) her ceiling and end-bows with crowbars, thereby injuring 
 and weakening her. Lord Ellenborough, addressing the counsel for 
 the plaintiff, said, " To constitute barratiy, which is a crime, the 
 captain must be proved to have acted against his better judgment ; 
 as the case stands, there is a whole ocean between you and 
 barratry '^ [a] . 
 
 Barratry may be committed with the privity of the freighters 
 against the owner, or by the owners or master against the general 
 freighter {b). One part-owner, being master, may commit barratry 
 against another (c), but if the master be sole owner, he cannot 
 commit barratry against himself [d) . 
 
 2. Acts of barratry punishable by Statute. 
 
 [But though this word, taken even in the more limited sense in 
 which it is used in this country, does not denominate any crime 
 punishable by law, yet several offences committed by the master and 
 mariners, in violation of their trust and duty, and which fall within 
 the definition of barratry, are punishable by different statutes.] 
 
 The 24 & 25 Vict. c. U7, ss. 42 — 49, contains provisions as to the 
 punishment of persons setting fire to, casting away, or damaging, &c,, 
 ships, see 2 Buss, on Crimes, by Prentice, p. 958; and by 24 & 25 
 Vict. c. 100, s. 13, a person is guilty of felony who sets fire to a 
 ship, &c., with intent to commit murder. See 1 Buss, on Crimes, 
 by Prentice, p. 912. 
 
 (a) Tochl V. SitcJiie, 1 Stark. Eep. 240. (t) Tallejov. TF/iee/er/Cowp. 143. Soares 
 
 See G-rell v. General Iron Screw Collier v. Thornton, 7 Tauut. 627. 
 Company, 37 L. J. C. P. 205 ; L. K. 3 C. P. (c) Jones v. Mcholson, 10 Exch. 28. 
 
 476, where a contravention of the rules of Botifjiower v. Wilmer, 2 Sehv. 976. Bell's 
 
 the Merchant Shipping Acts in starhoard- Principles of the Law of Scotland, p. 188. 
 ing instead of porting the ship's helm, was {d) Ross v. Hwiter, 3 Term E. 33. 2sutt 
 
 held not to amount to barratry within the v. Bourdeanx, 1 T. E. 323. Stannr.a v. 
 
 meaning of a bill of lading. Brown, 2 Strange, 1173.
 
 OF BARRATRY. 139 
 
 Chap. 5. 
 3. Barratrous Disposal of Ship and Cargo. 
 
 [Secondly, as to the offences of running away with the ship or 
 cargo, and of mating a reA'olt in the ship. 
 
 By a statute passed in the reign of King William the Third (e), it 
 is enacted, " That if any commander or master of any sliip, or 
 any seaman or mariner, shall in any place where the admiral hath 
 jurisdiction betray his trust, and turn pirate, enemy, or rebel, and 
 piratically and feloniously run away with his or their ship or ships, 
 or any barge, boat, ordnance, ammunition, goods or merchandises ; or 
 yield them up voluntarily to any pirate ; or shall bring any seducing 
 messages from any pirate, enemy, or rebel; or consult, combine, or 
 confederate with; or attempt or endeavour to corrupt any com- 
 mander, master, officer, or mariner to yield up or nm away with any 
 ship, goods, or merchandises; or turn pirate, or go over to pirates; 
 or if any person shall lay violent hands on his commander, whereby 
 to hinder him from fighting in defence of his ship and goods com- 
 mitted to his trust; or shall confine his master, or make or endeavour 
 to make a revolt in the ship — he shall be adjudged, deemed, and 
 taken to be a pirate, felon, and robber, and being convicted thereof 
 according to the directions of this Act, shall have and suffer pains of 
 death, loss of lands, goods and chattels, as pirates, felons, and robbers 
 upon the seas ought to have and suffer'^ (/)•] 
 
 4. Not resisting Pirates. 
 
 [Thirdly, as to the offence of not resisting pirates and enemies {g). 
 It appears formerly to have been a practice with the Turkish pirates 
 to restore a ship, and the goods of the master and mariners, and 
 sometimes even to pay the whole or a part of the freight, if the ship 
 yielded to them, and they were suffered to take out the cargo without 
 resistance. To prevent this practice, a statute was passed so long 
 ago as the reign of King Charles the Second, in the preamble 
 whereof this practice is recited, and by which the master of any 
 vessel of a burden not less than two hundred tons, and furnished 
 with sixteen guns, is forbidden to yield his cargo to pirates of any 
 force without resistance, on pain of being rendered incapable to take 
 charge of any English vessel afterwards ; and if the ship be released, 
 and anything given by the pirates to the master, such gift and his 
 share of the ship are to go to the owners of the goods. And any 
 ship of less burden or force than -before-mentioned is forbidden to] 
 
 (e) 11 & 12 "Will. 3, c. 7, s. 9, made per- ment, see 1 Russ. on Crimes, by Prentice, 
 
 petual by 6 Geo. 1, e. 19. p. 253 ; 1 Vict. c. 88. 
 
 (/) As to the place, kc, of trial, and as {g) [See Hanseatic Ordinance, arts. 35 — 37 
 
 to the present punishment under this enact- and Eoccus, Not. 70].
 
 140 OF BAEEATRY. 
 
 Part III. [yield to a Turkish pirate, not having double her number of guns, 
 without fighting [a] ; an extraordinary instance of the courage and 
 skill which the legislature of those times attributed to English 
 seamen, and which the exploits of succeeding generations have so 
 often and so gloriously exemplified ! 
 
 By the same statute (22 & 23 Car. 2, c. 11, s. 7) it is enacted, 
 " That if the mariners or inferior officers of any English ship, laden 
 with goods and merchandises as aforesaid, shall decline or refuse to 
 fight and defend the ship, when they shall be thereunto commanded 
 by the master or commander thereof, or shall utter any words to 
 discourage the other mariners from defending the ship, every mariner 
 who shall be found guilty of declining or refusing as aforesaid, shall 
 lose all his wages due to him, together with such goods as he hath iu 
 his ship, and suffer imprisonment, not exceeding the space of six 
 months, and shall during such time be kept to hard labour for his or 
 their maintenance (i)] . 
 
 (a) 16 Car. 2, c. 6 (repealed) j 22 & 23 (b) See 11 & 12 Will. 3, c. 7, s. 9, ante 
 
 Car. 2, c. 11. 139.
 
 •LAWS FOR THE ENCOURAGEMENT, &C. OF SEAMEJ;. 141 
 
 Chap. 6. 
 
 CHAPTER VI. 
 
 OF THE LAWS FOR THE ENCOURAGEMENT AND PROTECTION OP 
 MERCHANT SEAMEN; AND HEREIN, 
 
 Sect, 1. Legal Provision for Seamen disabled in Fight with Pirates and Enemies, p. 141. 
 
 2. Corporation erected for the Belief of maimed and disabled Seamen, and of the 
 
 Widows and Children of Seamen killed, slain, or drotoned in the Merchant 
 Service, or who have contributed to the Fund raised for that purpose, p. 142. 
 
 3. Provisions for preserving the Health of Seamen, and for their relief rohen falling 
 
 Sick at Sea, or hurt in the Performance of their Dutg, p. 143. 
 
 4. Regulations for the Protection of Seamen from Imposition, p. 144. 
 
 5. Offence of Master improperly discharging Mariners abroad, forcing them on 
 
 Shore, or icrongfully leaving them behind; and Provision for the Relief of 
 Seamen abandoned, shipwrecked, captured, or cast away, p. 145. 
 
 6. Regulations for the Registration of Merchant Seamen, p, 145. 
 
 1. Legal Provision for Seamen disabled in Fight with Pirates 
 
 and Enemies. 
 
 [The legislature has not been less studious to reward and provide 
 for deserving mariners, than to punish the fraudulent or the fearful. 
 To this purpose it has been enacted {c), ''That when any English ship 
 shall have been defended against any pirates, enemies, or sea-rovers 
 by fight, and brought to her destined port, in which fight any of 
 the officers or seamen shall have been killed or wounded, it shall and 
 may be lawful to and for the judge of his Majesty ^s High Court of 
 Admiralty, or his surrogate in the port of London, or the mayor, 
 bailiff, or chief officer in the several outports of this kingdom, upon 
 the petition of the master or seamen of such ship, so defended as 
 aforesaid, to call unto him four or more good and substantial 
 merchants, and such as are no adventurers or owners of the ship or 
 goods so defended, and have no manner of interest therein, and by 
 advice with them to raise and levy upon the respective adventurers 
 and owners of the ship and goods so defended, by process out of the 
 said court, such sum or sums of money as himself and the said mer- 
 chants, by plurality of voices, shall determine and judge reasonable, 
 not exceeding two pounds per centum of the freight, and of the ship] 
 
 (c) [11 & 12 Will. 3, c. 7, s. 11. See also the common charge of the concerned, in a 
 
 22 & 23 Car. 2, c. 11, s. 10. general average ; and the Hanseatic Ordi- 
 
 By the Hanseatic Ordinance, art. 53, a nance of the year 1614 is to the same effect, 
 
 seaman disabled in defending a ship against tit. 14, art. 3]. 
 rovers is to be maintained during his life at
 
 142 LAWS FOR THE ENCOUEAGEMENT, &C. OF SEAMEN — 
 
 Part III. [and goods so defended, according to the first cost of the goods; 
 — " -which sum or sums of money so raised shall be distributed among 
 the captain^ master, officers, and seamen of the said ship, or widows 
 and children of the slain, according to the direction of the judge of 
 the said court, or his surrogate in the port of London, or the mayor, 
 bailiflf, or chief officer in the several outports of this kingdom, with 
 the approbation of the merchants aforesaid, who shall proportion 
 the same according to theii' best judgment unto the ship^s company 
 as aforesaid, having special regard unto the widows and children of 
 such as shall have been slain in that service, and such as have been 
 wounded or maimed." 
 
 By two subsequent statutes, seamen in the merchant service dis- 
 abled in fight against a pirate [a] or enemy {b), were to be admitted 
 into and provided for in Greenwich Hospital, the great asylum for 
 decayed and disabled seamen belonging to the royal navy.] 
 
 3. Corporation erected for the Belief of maimed and disabled Seamen, 
 and of the Widoivs and Children of Seamen killed, slain, or 
 drowned in the Merchant Service, or who have contributed to the 
 Fund raised for that purpose. 
 
 [But that hospital having been found insufficient for this addition 
 to the primary objects of its institution, another national establish- 
 ment was erected] by the 20 Geo. 2, c. 38 (now repealed), by which 
 Act a corporation was created, composed chiefly of eminent mer- 
 chants, by the name of " The President and Governors for the relief 
 and support of maimed and disabled seamen, and the ividows and 
 children of such as shall he killed, slain, or drowned in the merchant 
 service." To this corporation the management of the fund to be 
 raised under the provisions of the Act was entrusted, with power to 
 purchase land and erect an hospital, to supply vacancies that might 
 occur in the places of president, assistants, governors, and members, 
 and for making and altering the bye-laws, constitutions, and ordi- 
 nances of the said corporation. After this was passed the 
 4 & 5 Will. 4, c. 52 [c), for making provision for disabled seamen 
 and their families. 
 
 This Act having, however, been found inadequate for the pui'poses 
 for which it was established, an Act, called " The Seaman^s Fund 
 Winding-up Act,""^ 1851, was passed, for bringing it to an end, and 
 satisfying the just demands of persons having claims upon it [d). By 
 this Act and the Merchant Shipping Acts, the objects contemplated 
 by the statutes before mentioned are to be eftected, it may be hoped 
 in a more satisfactory manner. 
 
 (rt) 8 Geo. 1, c. 24. (c) Now repealed; see 17 & 18 Yict. 
 
 (h) 8 Geo. 2, c. 29, s. 10. c. 120. 
 
 {d) 14 & 15 Yict. c. 102.
 
 3. AS TO THEIK HEALTH, &C. 143 
 
 Chap. 6. 
 
 3. Provisions for Preserving the Health of Seamen, and for their 
 Relief when falling Sick at Sea, or hurt in the Performance of 
 their duty. 
 
 [By the ancient marine ordinances^ if a mariner fallsi sick during a 
 voyage^ or is hurt in the performance of his duty, he is to be cured at 
 the expense of the ship, but not if he receives an injury in the pursuit 
 of his own private concerns (e)]. Similar provisions have been made 
 by British legislation in favour of merchant seamen (/). Every 
 foreign-going ship having a hundred persons on board must, under a 
 penalty upon the owner in default of 100/. for every voyage, carry, as 
 one of her complement, a physician, surgeon, or apothecary, duly 
 authorized by law to practise {g) . 
 
 A sufficient supply of medicines and medicaments suitable to acci- 
 dents and diseases arising on sea voyages must be kept constantly on 
 board any ship navigating between the United Kingdom and foreign 
 parts {h), under a penalty upon the master or owner of 20/. Lime 
 or lemon juice is to be kept on board, and served out to the crew of 
 every ship, except those bound to European ports, or ports in the 
 Mediterranean Sea, and certain other places, at prescribed rates and 
 intervals [i) . Any person who supplies medicines, &c., of bad quality 
 for the use of any ship is liable to a penalty not exceeding 20/. (/c). 
 The Board of Trade issues and publishes scales of medicines, &c., 
 suitable for different ships and voyages, and also sanctions books 
 containing instructions for dispensing the same (/) . On complaint of 
 any three of the crew to any officer in command of any of Her Majesty's 
 ships, or any British consular officer, or any superintendent of a 
 mercantile marine office, or chief officer of customs, such officers may 
 cause a survey to be held on the provisions and water supplied for the 
 ship's use; and if, after their bad quality, unfitness for use, or 
 insufficiency, is signified in writing by the surveying officer to the 
 master of the ship, he continues to use them, or neglects to supply 
 others, he is liable to a penalty of 20/., and the result of such survey 
 is to be entered by the surveyors on the official log, and a report 
 thereof made to the Board of Trade {m). The owner is liable to an 
 action by the seamen to recover compensation for any damage they 
 may have sustained by reason of the insufficiency of medicines or 
 provisions (w). 
 
 (e) [Laws of Oleron, art. 6 ; of Wisbuy, (i) Sect. 224. As to the supply of lime 
 
 art. 18; of the Haiise Towns, art. 39, &c. or lemon juice in British possessions out of 
 
 See Cleirac on the laws of Oleron]. JPant v. the United Kingdom, see 30 & 31 Vict. 
 
 i:den, 6 T. R. 325 n. c. 124, s. 6. 
 
 (/) 17 & 18 Vict. c. 104, s. 228; 30 & 31 (k) 30 & 31 Vict. c. 124, s. 5. 
 
 Vict. c. 124, s. 7. (l) 30 & 31 Vict. c. 124, s. 4. 
 
 Iff) 17 & 18 Vict. c. 104, s. 230. As to (m) Sect. 221. 
 
 passenger ships, see j^ost, ch. 8 of this Part. (») Couch v. Sieel, 23 L. J. Q. B. 121 j 
 
 (h) 30 & 31 Vict. c. 124, s. 4. 2 E. & B. 402.
 
 144 LAWS FOE. THE ENCOURAGEMENT, &C. OF SEAMEN 
 
 Part III. 
 
 4. Regulations for the Protection of Seamen from Imposition. 
 
 No person, not being the owner, master, or mate of the ship, or 
 bond fide servant in constant employ of the owner, or a superintendent 
 o£ a mercantile marine office, may, under a penalty of 20/. for each 
 seaman or apprentice, engage or supply any seaman or apprentice to be 
 entered on board any ship in the IF.K., unless he is licensed to do so 
 by the Board o£ Trade. The like penalty is, in addition, if licensed, 
 to the forfeiture of his license, enacted against any person who employs 
 any unlicensed person, other than such as are above excepted, to 
 engage or supply any seaman or apprentice or who knowingly 
 receives on board any seaman or apprentice contrary to the pro- 
 visions of this Act {a) . And any person who demands or receives, 
 directly or indirectly, from any seaman, or apprentice, or person 
 seeking employment as such, any other remuneration than the fees 
 authorized by the Act for providing him with employment, is liable 
 to a penalty of ol. [b) . 
 
 Every person not being in Her Alajesty^s service, or duly authorized 
 by law, who goes on board any ship about (c) to arrive at her place 
 of discharge without the permission of the master, is liable to a 
 penalty of 20/., and may be taken into custody by the master and 
 delivered to a constable to be taken before a magistrate {d) . 
 
 A penalty of 5/. is also imposed on any one who, on board any 
 merchant ship, within twenty-four hours after her arrival in port, 
 solicits any seaman to lodge in the house of any lodging-house 
 keeper, or who takes out of the ship, without the personal direction 
 of the seaman and the leave of the master, any effects belonging to a 
 seaman {e) ; and any person who demands or receives payment from 
 any seaman or apprentice for a longer period than his actual board 
 and residence, or who does not return on demand any of his money, 
 documents, or effects, or their value, after deducting what is due 
 for board and lodging, or absconds therewith, is liable to a penalty 
 not exceeding 10/. above the value of the property after this 
 deduction (/). 
 
 The Merchant Shipping Acts also contain provisions for ensuring 
 suitable accommodation in the ship for seamen {g) . And the master 
 is bound, under a penalty of 10/., to allow any seaman or apprentice 
 to go ashore, or to send him ashore in proper custody, who states his 
 desire to make a complaint to a justice of the peace, consular officer, 
 or naval officer in command of any of Her Majesty^s ships, against 
 the master or any of the crew (h) . No wages due or accruing to 
 anv seaman or apprentice are subject to attachment or arrestment 
 
 (a) Sect. 147. (e) Sect. 238. 
 
 (b) Sect. 148. (/) Sects. 235, 236. 
 
 (c) Atiioood V. Case, 1 Q. B. D. 137. {g) 30 & 31 Vict. c. 124, s. 9. 
 \d) Sect. 237. W Sect. 232.
 
 .6. EEGISTKATION OF. 145 
 
 from any court ; and every payment of wages^ sliall be valid^ not- Chap. 6. 
 
 witlistanding any sale or assignment of, or attacliment, incumbrance, 
 
 or arrestment on them (i) . No assignment or sale of wages, or of 
 salvage, prior to the accruing thereof, is binding on the party mak- 
 ing the same ; and no power of attorney, or authority for the receipt 
 of wages or salvage, is irrevocable (k) . Nor is any debt exceeding 5*. 
 in amount by any seaman, after he has engaged to serve^ recoverable 
 until the agreed service is concluded (/). 
 
 5. Offence of Master imjjroperhj discharging Mariners abroad, forcing 
 them on Shore, or wrontjfully leaving them behind; and Pro- 
 visions for the Relief of Seamen abandoned, shipivreckedj 
 captured, or cast away. 
 
 As to the offences of abandoning seamen, or discharging them 
 abroad; of wrongfully putting them on shore, or leaving them 
 behind on shore, or at sea, without the sanction of the British authori- 
 ties or representatives [m), the reader is referred to the clauses of 
 the Act of Parliament. 
 
 Provisions will there also be found respecting the payment of wages 
 to seamen lawfully left behind (/?) ; for the recovery of the expenses 
 incui'red by British governors, consuls, or merchants, in the sub - 
 sistence of seamen and apprentices, shipwrecked, discharged, or left 
 behind, in foreign ports, and for their conveyance home in ships 
 bound for Great Britain (o) . 
 
 6. Regulations for the Registration of Merchant Seamen. 
 
 The " General Register and Record Office of Seamen,''^ established 
 in the port of London, is under the control of the Board of Trade, 
 which is empowered to appoint and remove the registrar-general, his 
 clerks and assistants ; to regulate their salaries, and direct that the 
 business of the register office at the outports may be done at the 
 mercantile marine office, or at the Custom-house of such outports, by 
 a superintendent of a mercantile marine office, or officer of customs 
 appointed by it {p) . The registrar-general is to keep a register of 
 all persons who serve in ships subject to the provisions of the Act [q). 
 To enable him to do so^ the master of every foreign-going ship of 
 which the crew is discharged in the United Kingdom, and of every 
 home-trade ship, must make out a list^ in a form sanctioned by the 
 
 (t) Sect. 233, in) Sect. 209. The Eajah of Cochin, 
 
 Ik) Ibid. Swab. 473; 25 & 26 Vict. e. 63, s. 19. 
 
 \l) Sects. 234. (o) Sect. 211. 
 
 Im) Sects. 207, 208. {p) Sect. 271. 
 
 {q) Sect. 272. 
 
 L
 
 146 LAWS FOR THE ENOOURAGEMENT, &C., OF SEAMEN — • 
 
 Part III. Board of Trade, stating the number and date of the ship's register, 
 
 and her registered tonnage ; the length and nature of the voyage or 
 
 employment ; the names, ages, places of birth, qualities on board last 
 ship or employments of all the crew, including master and appren- 
 tices, and the dates and times of their joining the ship; the names 
 of those who have died or ceased to belong to the ship, or who have 
 been maimed or hurt, with the times, places, causes, and circum- 
 stances thereof ; the wages due to, and the clothes and eflfects be- 
 longing to those who have died, and the mode in which they have 
 been dealt with, and for what money sold ; every marriage, with the 
 date thereof, and the names and ages of the parties {a) . 
 
 These lists are required, under a penalty of 5/. upon the master in 
 the case of a home-trade ship, to be delivered half-yearly to a 
 superintendent of a mercantile marine office ; and in case of a 
 foreign-going ship, within 48 hours after the ship's arrival at her 
 final port of destination in the U. K., or upon the discharge of the 
 crew, whichever first happens, to the superintendent of the mercantile 
 marine office before whom the crew is discharged ; and such super- 
 intendent shall grant certificates of such delivery, without the pro- 
 duction of which no officer of customs shall clear inwards any 
 foreign-going ship, or grant clearance or transire to any home-trade 
 ship, but may detain them until such certificates are produced [b). 
 
 The master or owner of any ship which by transfer or change of 
 employment ceases to be a foreign-going or a home-trade ship, and 
 of any ship which is lost or abandoned, is required, under penalties, to 
 transmit or deliver such lists to the superintendent of the mercantile 
 marine office of the port to which the ship has belonged [c] . After 
 these lists have been kept by the superintendents for such time as may 
 be necessary for the settlement of any business, or any other proper 
 purpose, they are to be forwarded to the registrar-general to be by him 
 recorded and preserved. He is to allow any person to inspect them on 
 payment of a moderate fee, produce them when required for purposes 
 of evidence, and grant certified copies of them, which are to have the 
 same eff'ect in evidence as the originals (d). The collector and comp- 
 troller of customs at every port in the United Kingdom is required to 
 send half-yearly to the registrar-general of seamen a list of ships regis- 
 tered there, and of ships whose registers have been cancelled, or trans- 
 ferred there, since the preceding return (e) . The master of every ship, 
 wherever registered, except ships whose business for the time being 
 is to carry passengers, is required, within forty-eight hours after her 
 arrival at any foreign port, or port of a British possession at which 
 she remains so long, to deliver to a British consular officer or officer of 
 customs, the agreement with the crew, and all indentures and assign- 
 ments of apprenticeship (/). Those officers are to keep such docu- 
 
 (a) Sect. 273. As to the registration (c) Sect. 276. 
 
 of births and deaths at sea, see 37 & 38 (d) Sect. 277. 
 
 Vict. c. 88, s. 37. (e) Sect. 278. 
 
 (i) Sects. 274, 275. See sect. 273. (/) Sect. 279.
 
 6. EEGISTRATION OF. 147 
 
 ments during tlie ship's stay, endorse on the agreement the neglect of Chap. 6. 
 
 any required forms or transgression of existing laws, and having 
 
 returned the documents to the master within a reasonable time before 
 his departure, with a certificate endorsed on the agreement of the time 
 when they were delivered and returned, to transmit a copy of such 
 endorsement of neglect or transgression, with the fullest information 
 he can collect respecting it, to the registrar-general of seamen {g) . 
 Any master failing so to deliver such document, shall incur for every 
 such default a penalty of 20/., and in any prosecution for such 
 penalty it shall lie upon the master either to produce the certificate 
 of the consular officer or officer of customs hereinbefore required, or 
 to prove that he duly obtained the same, or that it was impracticable 
 for him so to do [h) . 
 
 (g) Sect. 279. (A) Ibid. 
 
 l2
 
 148 -OF PILOTS — 
 
 Part III. 
 
 CHAPTER YU. 
 
 OF PILOTS. 
 
 Sect. 1. Of Pilots generalli/, p. 14-8. 
 
 2. Of the Trinity House and its Jurisdiction, and the Cinque Fort Pilots, p, 149. 
 
 3. Of the General Regulations of the 17 ^' IS Vict. c. 104, resjoeeting Pilotage 
 
 Authorities and Pilotage, p. 150. 
 
 4. Of Compulsory Pilotage, p. 155. 
 
 5. What Vessels need not taJce a Pilot, p. 156. 
 
 6. Miscellaneous, p. 158. 
 
 7. Exemption of Oivners and Masters from Lialilitg in case of Damage ly fault 
 
 of Pilot, p. 159. 
 
 8. Pilotage of Foreign Ships, p. 160. 
 
 1. Of Pilots generally. 
 
 [The name of pilots or steersman^ is applied either to a particular 
 officer^ serving on board a ship during the course of a voyage, and 
 having the charge of the helm and of the ship^s route ; or to 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. The 
 French ordinance contains several regulations calculated to obtain the 
 necessary skill and experience in persons of the first description (a) . 
 In this country there is no particular provision relating to them, and 
 manv ships are navigated without an officer of this description, the 
 master taking upon himself the charge of the helm, and the conduct 
 of the vessel. 
 
 Pilots of the second description are established at several places in 
 this country by ancient charters of incorporation ; and, in general, 
 the master of a ship engaged in foreign trade must put his ship imder 
 the charge of such a pilot, both in his outward and homeward voyage, 
 within the limits of every such establishment {b). An account of 
 these establishments, and of the ports to which they relate, would be 
 improper in a general treatise ; and masters of vessels may easily 
 acquaint themselves with the regulations on this subject, relating to 
 the particular navigation in which they are employed.] 
 
 As to the meaning of '' pilot" in the Merchant Shipping Acts, see 
 sect. 2of M. S. Act, 1854. 
 
 (a) Liv. 2, tit. 4 : Du Pilote. v. Seadlam, 2 B. & A. 380. The William, 
 
 {h) Law V. HoUingsworth, 1 Term Rep. 6 Rob. 316. 
 K. B. 160 J 52 Geo. 3, c. 39, s. 59. Phillips
 
 2. TRINITY HOUSE AND CINQUE PORTS. 149 
 
 Chap. 7. 
 
 3. Of the Trinity House and its Jurisdiction, and the Cinque Port 
 
 Pilots. 
 
 The most important of these pilotage authorities is the corporation 
 of the Trinity House, Deptford Strond {c) . 
 
 The 16 & 17 Vict. c. 129 (still, as respects some of its sections, in 
 force) [d) , after reciting that it is expedient that the right of piloting 
 ships outwards from the port of London and inwards to the same 
 port should be subject to uniform authority and control, makes cer- 
 tain provisions as to Cinque Port pilots and Trinity House pilots. 
 
 The Trinity House may, in the exercise of the general power given 
 to pilotage authorities, alter such of the provisions of the Merchant 
 Shipping Act, 1854, as are expressed therein to be subject to altera- 
 tion, in the same manner as they might have altered the same if they 
 had been contained in any previous Act of Parliament (e) . 
 
 The Trinity House is empowered (as are also the Trinity Houses 
 of Hull and Newcastle) (/) to appoint sub-commissioners for the 
 examination of pilots, in all districts in which they have been used 
 to make such appointments, and, with the consent of her Majesty in 
 council as respects the Trinity House, for other districts in which no 
 particular provision is made by Act of Parliament or charter for the 
 appointment of pilots, and as respects the Hull and Newcastle Trinity 
 Houses for other places Avithin their jurisdiction {(/). 
 
 The limits for -which the Trinity House is empowered to license 
 pilots are the London district, comprising the Thames and Medway 
 as high as London and Rochester Bridges, and all the seas and 
 channels leading thereto or therefrom, as far as Orfordness to the 
 north, and Dungeness to the south ; the English Channel district 
 between Dungeness and the Isle of Wight; and the Trinity outport 
 districts, comprising any i)ilotage district for the appointment of 
 pilots within which no particular provision is made by charter or Act 
 of Parliament (A). 
 
 No pilot shall be hereafter licensed to conduct ships both above 
 and below Gravesend {i) . 
 
 Notice of the names and abodes, and of the limits of the licenses 
 of all pilots licensed by the Trinity House, are to be fixed up at its 
 house in London, and copies thereof transmitted to the Commissioners 
 of Customs in London and the outports, to be posted up by them at 
 their respective Custom-houses {k) . 
 
 (c) See 25 & 26 Vict. c. 63, ss. 39, 40. if the fifth part of " The M. S. Act, 1854," 
 
 (rf) See Appendix. The Act, except sects. were therein referred to instead of 6 Geo. 4, 
 
 3, 4, 5, 8, 10, and so ranch of sect. 9 as c. 125. 
 
 relates to the recovery of pilotacje rates by (e) 17 & 18 Vict. c. 101, s. 368. 
 
 Cinque Port pilots before 17 & 18 Vict. (/) Sect. 387. 
 
 c. 120 came into operation, was repealed (ff) Sect. 369. 
 
 by this latter statute, by which also it is (h) Sect. 370. 
 
 enacted, (sect. 6), that sects. 4 and 9 of (i) Sect. 370. 
 
 16 & 17 Vict. c. 129, shall be construed as (k) Sect. 371.
 
 150 OF PILOTS — 
 
 Part III. Every Trinity House pilot shall execute on liis appointment a bond 
 for 100/. conditioned for the due observance on his part of the regu- 
 lations and bye-laws of the Trinity House ; and no qualified pilot, 
 ■who has executed such bond, shall be liable for neglect or want of 
 skill beyond its penalty and the amoiint of pilotage payable to him in 
 respect of the voyage for which he is engaged (a) . 
 
 The Trinity House has power to revoke or suspend the license of 
 any pilot appointed by it {b). Such licenses continue only in force 
 until the 31st day of January in the year next after their date, 
 but may then be renewed by endorsement under the hand of the 
 secretaiy of the Trinity House, or other person appointed by them 
 for that purpose (c). 
 
 By Order in Council of the 16th day of July, 1857, '^^ Any master 
 or mate who hold a pilotage certificate granted by the said Trinity 
 House under the said Act, enabling him to pilot any ship or ships, 
 shall be qualified to pilot any other ship or ships belonging to the 
 same owner or owners as the ship or ships for which his certificate 
 was granted, within the limits described in such certificate, Avithout 
 being compelled to employ a pilot, on the following conditions, 
 viz. : — 
 
 "The ship or ships which he is so qualified to pilot shall be of no 
 greater draught of water than the ship or ships in respect of which 
 his certificate was granted. 
 
 " The name and description of eveiy ship which he is so qualified 
 
 to pilot shall have been by or with the consent of the said Trinity 
 
 House first added to, or endorsed upon, his certificate.^'' 
 
 Cinque Port As to Cinque Port pilots, see 16 & 17 Vict. c. 129 ; 35 & 36 Vict. 
 
 Pi'o*s-, c. 73, s. 10. As to the bounds of the Cinque Ports, see 1 & 2 Geo. 4, 
 
 c. 76, s. 18. 
 
 3. Of the General Regulations of the 17 Sf 18 Vict. c. 104, respecting/ 
 Pilotage Authorities and Pilotage. 
 
 The fifth part of the Merchant Shipping Act, 1854, that is to say, 
 the enactments relating to pilotage apply to the U. K. only, 
 sect. 330. 
 
 As to the meaning of " pilot," '' qualified pilot," and " pilotage 
 authority" in the M. S. Acts, see sect. 2 of M. S. Act, 1854. 
 
 By the 17 & 18 Vict. c. 104, it is provided that every pilotage 
 authority within the U. K. {d) shall retain the powers and jurisdic- 
 tion Avhich it now lawfully possesses, so far as the same are consistent 
 with the provisions of that Act (e). It shall have power also, by 
 bye-laws made with the consent of Her Majesty in council, to exempt 
 the masters of ships from being compelled to employ qualified pilots, 
 
 (a) Sects. 362, 363. (d) Sect. 330. 
 
 (b) Sect. 375. (e) Sect. 331. 
 
 (c) Sect. 374. The Sefa^ 3 Moore, P. C. 
 (n.s.) 23, 30.
 
 3. REGULATIONS IN M. S. ACTS AS TO. 161 
 
 on sucli terms and conditions as may appear desirable to it (/) — to Chap. 7. 
 
 determine from time to time within its districts the qualifications to 
 
 be required of persons applying to be licensed as pilots — to make 
 regulations as to the licensing of pilot boats and ships, and companies 
 for their support — to make regulations for the good government and 
 conduct of pilots licensed by it, the effective performance by them of 
 their duty, and the terms and conditions on which licenses to pilots 
 and apprentices, and pilotage certificates to masters and mates, may 
 be gi'anted, withdrawn, or suspended — to fix, alter and reduce the 
 rates of pilotage — to make arrangements with any other pilotage 
 authority for altering, extending, or restricting their respective limits, 
 for the purpose of facilitating navigation, or reducing the rates on 
 shipping — to establish, either alone or in conjunction with other 
 pilotage authorities, funds for the relief of superannuated or infirm 
 qualified pilots, or of their wives, Avidows, and children — and to repeal 
 or alter any bye-laws made in exercise of the above powers, and make 
 a new one in lieu thereof, notwithstanding any Act of Parliament, 
 rule, law, or custom to the contrary {g) . By 25 & 26 Vict. c. 63, 
 s. 39, the Board of Trade is empowered by provisional order, which 
 is not to take effect unless confirmed by parliament, to prepare 
 schemes to be afterwards embodied by them in public general bills, 
 for effecting the objects contemplated by these enactments, and for 
 further amending the law concerning pilotage, with a due regard to 
 existing interests, and to the circumstances of each particular case, 
 and for this purpose, — 
 
 (1.) Whenever any pilotage authority residing or having its place 
 of business at one port has or exercises jurisdiction in matters 
 of pilotage in any other port, to transfer so much of the 
 said jurisdiction as concerns such last-mentioned port, to 
 any harbour trust or other body exercising any local juris- 
 diction in maritime matters at the last-mentioned port, or 
 to any body to be constituted for the purpose by the pro- 
 visional order, or, in cases where the said pilotage authority 
 is not the Trinity House of Deptford Strond, to the said 
 Trinity House ; or to transfer the whole or any part of the 
 jurisdiction of the said pilotage authority to a new body 
 corporate or body of persons to be constituted for the pur- 
 pose by the provisional order, so as to represent the interests 
 of the several ports concerned : 
 (2.) To make the body corporate or persons to whom the said 
 transfer is made a pilotage authority within the meaning of 
 the principal Act, with such powers for the purpose as may 
 be in the provisional order in that behalf mentioned : 
 
 To determine the limits of the district of the pilotage 
 authority to which the transfer of jurisdiction is made : 
 
 To sanction a scale of pilotage rates to be taken by the 
 pilots to be licensed by the last-mentioned pilotage authority: 
 
 (/) Sect. 332, 353. See Order in {g) Sect. 833. 
 
 Council, 5tli Feb., 1873.
 
 152 OF PILOTS — 
 
 Part III. To determine to wliat extent and under what conditions 
 any pilots already licensed by the former pilotage authority- 
 shall continue to act under the new pilotage authority : 
 
 To sanction arrangements for the apportionment of any 
 pilotage funds belonging to the pilots licensed by the former 
 pilotage authority between the pilots remaining under the 
 jurisdiction of that authority, and the pilots who are trans- 
 ferred to the jurisdiction of the new authority : 
 
 To provide for such compensation or superannuation as 
 may be just to officers employed by the former pilotage 
 authority and not continued by the new authority : 
 
 (3.) To constitute a pilotage authority and to fix the limits o£ its 
 district in any place in the U. K. where there is no such 
 authority ; so, however, that in the new pilotage districts so 
 constituted there shall be no compulsory pilotage, and no 
 restriction on the power of duly qualified persons to obtain 
 licenses as pilots. 
 
 (4.) To exempt the masters and owners of all ships, or of any 
 classes of ships, from being obliged to employ pilots in any 
 pilotage district or in any part of any pilotage district, or 
 from being obliged to pay for pilots when not employing 
 them in any district or in any part of any pilotage district, 
 and to annex any terms and conditions to such exemp- 
 tions : 
 
 (5.) In cases where the pilotage is not compulsory, and where 
 there is no restriction on the power of duly qualified persons 
 to obtain licenses as pilots, to enable any pilotage authority 
 to license pilots and fix pilotage rates for any part of the 
 district within the jurisdiction of such authority for which 
 no such licenses or rates now exist : 
 
 (6.) In cases where the pilotage is not compulsory, and where 
 there is no restriction on the power of duly qualified persons 
 to obtain licenses as pilots, to enable any pilotage authority 
 to raise all or any of the pilotage rates now in force in the 
 district or any part of the district within the jurisdiction of 
 such authority. 
 
 (7.) In cases where the pilotage is not compulsory, and where 
 there is no restriction on the number of pilots, or on the 
 power of duly qualified persons to obtain licenses as pilots, 
 to give additional facilities for the recovery of pilotage rates 
 and for the prevention of the employment of unqualified 
 pilots : 
 
 (8.) To give facilities for enabling duly qualified persons, after 
 proper examination as to their qualifications, to obtain, 
 licenses as pilots («) . 
 
 (a) By 25 oc 26 Vict. c. 63, s. 40, tlie 1. Application iu writing for such order 
 
 following rules are to be observed with shall be made to the Board of Trade 
 
 respect to provisional orders made in pur* by some jjersons interested in the 
 
 Buance of this act . pilotage of the district or in the
 
 3. EECIULATIONS IN M. S. ACTS AS TO. 
 
 153 
 
 Every such new bye-law must, before it is submitted to H. M. Chap. 7. 
 in council for her assent^ be published in such manner as the Board " 
 
 of Trade shall prescribe; every order in council relating to it shall 
 be laid, as soon as possible after the making thereof, before both 
 Houses of Parliament ; and if the majority of qualified pilots at any 
 port, or the Local Marine Board, or should there bo no Local Marine 
 Board, not less than six masters, owners, or insurers of ships, con- 
 sider themselves aggrieved by any bye-law or regulation made under 
 some authority other than the provisions of the Act, the Board of 
 Trade is authorized, on their appeal to it, to revoke or alter such 
 bye-law or regulation, in such manner as may appear to it just and 
 expedient {b). 
 
 Every pilotage authority is required, under pain of having its 
 jurisdiction transferred to the Trinity House, to deliver periodically 
 to the Board of Trade returns of all bye-laws, regulations, and orders 
 relating to pilots, in force under its jurisdiction; of the names and 
 ages of all pilots and apprentices licensed by it, or acting without 
 license ; of the service for which each pilot or apprentice is licensed ; 
 the rates of pilotage for the time being in force, and the total amount 
 received for pilotage ; and the receipt and expenditure of all moneys 
 received by or on behalf of such authority, or any sub-commissioners 
 appointed by it; and these returns are to be laid without delay before 
 both Houses of Parliament (c) . 
 
 operation of the laws or regulations 
 relating to such pilotage : 
 
 2. Notice of such application having been 
 
 made shall be published once at the 
 least in each of two successive weeks 
 in the month immediately succeeding 
 the time of such application in the 
 Skipping Gazette, and in some news- 
 paper or newspapers circulating in 
 the county, or, if there are more 
 than one, in the counties adjacent 
 to the pilotage district to be affected 
 by the order : 
 
 3. The notice so published shall state the 
 
 objects which it is proposed to effect 
 by the provisional order : 
 
 4. The Board of Trade on receiving the 
 
 application shall refer the same to 
 the pilotage authority or authorities 
 of the district, and shall receive and 
 consider any objections which may 
 be made to the proposed provisional 
 order, aud shall for that purpose 
 allow at least six weeks to elapse 
 between the time of referring the 
 application to the pilotage authority 
 and the time of making the provi- 
 sional order : 
 
 5. The Board of Trade shall, after consi- 
 
 dering all objections, determine 
 whether to proceed with the provi- 
 sional order or not ; and shall, if they 
 determine to proceed with it, settle 
 it in such manner and with such 
 
 terms and conditions, not being in- 
 consistent with the provisions of 
 this Act, as they may think fit; 
 and shall, when they have settled 
 the same, forward copies thereof to 
 the persons making the application, 
 and to the pilotage authority or 
 authorities of the district or districts 
 to which it refers : 
 
 G. No such provisional order shall take 
 effect unless and until the same is 
 confirmed by parliament; and for 
 the purpose of procuring such con- 
 firmation the Board of Trade shall 
 introduce into parliament a public 
 general bill, or i3ublic general bills, 
 in which, or in the schedule to 
 which, the provisional order or pro- 
 visional orders to be thereby con- 
 firmed shall be set out at length : 
 
 7. If any petition is presented to either 
 House of Parliament against any 
 such provisional order as aforesaid 
 in the progress through parliament 
 of the bill confirming the same, so 
 much of the bill as relates to the 
 order so petitioned against may be 
 referred to a select committee, and 
 the petitioner shall in such case be 
 allowed to appear and oppose, as in 
 the case of private bills, 
 
 (i) Sects. 334-336. 
 
 (c) Secta. 337—340.
 
 154 OF PILOTS — 
 
 Part III. The master or mate of any ship may apply to any pilotage authority 
 to be examined as to his capacity to pilot such ship, or other ships 
 belonging to the same owner, Avithin its district ; and if upon exami- 
 nation he be found competent, such authority shall grant him a 
 certificate, which shall enable him to pilot such ship or ships within 
 the limits therein described, without incurring any penalties for not 
 employing a qualified pilot ; and if, upon complaint to the Board of 
 Trade, it appears that such authority has refused to examine tlie 
 applicant^ or improperly withheld or withdrawn a certificate, the 
 board may direct an examination of the person aggrieved, and if 
 found competent, grant him a certificate («). 
 
 The certificate of any master or mate may be withdrawn by the 
 Board of Trade, or any pilotage authority, if he is guilty of mis- 
 conduct, or shows himself incompetent to pilot the ship (b) . 
 
 For the provisions respecting — the characteristics of pilot boats and 
 of their flags (c), pilot licenses (f/), and their production, on request, 
 to the person employing a pilot, or to whom his services are tendered, 
 their delivery to the pilotage authority by whom the pilot was 
 appointed when required by such authority (e), the general rights, 
 privileges, and remuneration of pilots, and the liability for pilotage, 
 of owners, masters, and such consignees or agents, who have paid or 
 made themselves liable to pay any other charge in respect of the ship, 
 the reader is referred to the Act (/). As to signals for pilots, see 
 36 & 37 Vict. c. 85, s. 19. 
 
 A qualified pilot may supersede an unqualified pilot, and a penalty 
 of 50/. is incurred by the latter, if he continues in charge of a ship 
 after a qualified pilot has offered to take charge of her ; or if he uses 
 a license to which he is not entitled (ff). But an unqualified pilot may, 
 without subjecting himself to any penalty, take charge of a ship, 
 when no qualified pilot has offered to take charge of her, or where a 
 ship is in distress or difficulty, or for the purpose of changing her 
 moorings in port, or taking her in or out of dock, where such act 
 may be done without infringing the regulations of the port, or the 
 la-\vful orders of the harbour-master (//). A qualified pilot on board 
 any boat or ship leading another ship which cannot be boarded, is 
 entitled to full pilotage for the distance run {i). 
 
 A refusal, at the request of any qualified pilot, to declare the 
 draught of water of any ship, or the being privy to a false declaration 
 thereof, subjects the master to a penalty of double the amount of 
 pilotage which would have been payable. And if any master, or 
 
 (a) Sects. 340 — 342. The KiUaniei/ modifying rule as to pilotage rules, see 
 
 Lush, 210. See Order iu Council, 16th 35 & 36 A'ict. c. 73, s. 9; Order in Council 
 
 July, 1857. 8th Fehruary, 1873. 
 
 (i) Sect. 344. (g) Sects. 360, 361. Beilby v. Scott, 
 
 (c) Sects. 345-348. 7 Mecs. & W. 93. 
 
 (d) Sect. 349. 35 & 36 Vict. c. 73, s. 11. (h) Sect. 362. Sex v. Zamh, 5 Term 
 
 (e) Sect. 352. This euactmeut is abso- Eep. 76. Sex v. Keale, 8 Term Eep. 241. 
 lute and unqualified. Henri/ v. Trinity And as to what is a change of mooring, 
 Souse of Newcastle, 8 E. & B. 723; 27 see Mcintosh v. Slade, 7 B. & C. 657. 
 
 L. J. M. C. 57. (0 Sect. 356. 
 
 (J) Sects. 356—368. As to Trinity House
 
 4 COMPULSORY PILOTAGE. 155 
 
 other person interested in a ship, makes, or is privy to any other Chap. 7. 
 
 person making, any fraudulent alteration in the marks on the stem 
 
 or stern-post of such ship denoting her draught of water, the offender 
 is liable to a penalty of 500/. {k) . 
 
 If any pilot, when in charge of a ship, by wilful breach or neglect 
 of duty, or drunkenness, does any act tending to the immediate loss, 
 destruction, or serious damage of such ship, or to endanger the life 
 or limb of any person on board, or omits to do any lawful act, proper 
 and requisite to be done for the prevention of such misfortunes, he 
 is guilty of a misdemeanor, and liable to suspension or dismissal (/) . 
 
 4. Of Compulsory Pilotage. 
 
 With respect to compulsory pilotage, it and all exemptions from it 
 are to continue in districts in which they obtained before the passing 
 of the M. S. Act, 1854 [m) ; and masters of unexempted ships piloting 
 their ships without a pilotage certificate, or employing an unqualified 
 person to pilot them after a qualified pilot has offered to take charge 
 of such ship, or made a signal for that purpose, incur a penalty of 
 double the amount of pilotage demandable for the conduct of such 
 ship {ii). 
 
 The master of every ship carrying passengers between any place 
 situate in the U. K. or the islands of Guernsey, Jersey, Sark, 
 Alderney, and Man, unless he or his mate has a pilotage certificate 
 or a certificate from the Board of Trade, must, within the limits of 
 any district for which licenses are granted by any pilotage authority, 
 employ a qualified pilot, and is liable to a penalty of 100/. for every 
 offence if he fails so to do (o) . 
 
 These regulations are applicable generally within the limits of all 
 pilotage jurisdictions (/»). The pilotage districts of the Trinity House, 
 within which the employment of pilots is compulsory, are the London 
 district, and the Trinity outport districts ; and any master without 
 certificate piloting his own ship, or employing an unqualified person 
 after offer to take charge or signal made by a qualified pilot, is liable. 
 
 {k) Sect. 359. (qni taui) v. Carrington, 2 B. & B. 399, and 
 
 (0 Sect. 366. 5 B. M. 176; and see Reg. v. Chancy, 6 
 
 (»() Sect. 379 has been held not to limit Dowl. 281 ; Chanei/ v. Payne, 1 Q. B. 712, 
 
 the exemptions contained in 6 Geo. 4,0. 125, "I presmne, however," says the author, 
 
 s. 59, and continued in section 353. Stanton (5th edition, p. 155,) "that if the master 
 
 V. Banks, 27 L. J. M. C. 105; E. v. should have given orders to his mate or 
 
 Stanton, 8 E. & B. 445. Earl of Auckland, other person not to receive a pilot, an offer 
 
 Lush., 178. to such person would be considered as an 
 
 (m) Sect. 353. It was decided under the offer to the master himself." 
 
 former statutes, that in order to subject the (o) Sects. 354, 355. See the Hibernian, 
 
 master to a penalty for continuing an un- 42 L. J. Ad. 8 ; L. K. 4 P. C. 511. 
 
 licensed pilot) after a pilot duly licensed and (p) Sects. 353—356. Pilotage is com- 
 
 qualified offers to take charge of the ship, pulsory on a vessel belonging to the port of 
 
 it must appear that such offer was made to London within the river Thames. The 
 
 or in the presence of the master. Peake Hankoio, 48 L. J. Ad. 29.
 
 166 OP PILOTS — 
 
 Part III. besides tte penalty before specified^ to au additional penalty^ (a 
 
 certificate having been obtained from the Trinity House authorizing 
 
 the prosecutor to proceed for it^) not exceeding 5/., for every fifty 
 tons burden of the ship (a). 
 
 A sufficient number of qualified pilots is always, by night and by 
 day, to be ready to take charge of vessels coming from the westward 
 of DungenesSj in conformity to such regulations as the Trinity House 
 may think right to promulgate {b) . 
 
 A forfeit to the Trinity House of double the sum which would have 
 been demandable for the pilotage is to be paid by the person in command 
 of a ship coming from the westward, and bound to any place in the 
 Thames or INIedway, who, not having a duly qualified pilot on board, 
 and not being exempt from compulsory pilotage, shall not, on the 
 arrival of his vessel off Dungeness, and until she shall have passed the 
 south buoy of the Brake and a line drawn from Sandown Castle to 
 the said buoy, or until a duly qualified pilot has come on board, 
 display the usual signal for a pilot ; and who, if any duly qualified 
 pilot shall be within hail, or approach him within half a mile, with 
 the proper distinguishing flag flying in his vessel or boat, shall not by 
 all practicable means facilitate such pilot^s getting on board, and give 
 the charge of piloting the vessel to him (c) . 
 
 Tjyutt Vessels need not fake a Pilot. 
 
 Ships, vvhen not carrying passengers, employed in the coasting 
 trade of the U. K., ships of not more than sixty tons burden, or 
 trading to Boulogne, or any place in Europe north of Boulogne, or 
 from Guernsey, Jersey, Alderney, Sark, or j\Ian, or navigating 
 within the limits of the port to which they belong, or passing 
 through the limits of any pilotage district on their voyages between 
 two places both situate out of such limits, and not being bound to 
 any place within such limits or anchoring therein, are exempt in the 
 London district and the Trinity outport district from compulsory 
 pilotage {d) . 
 
 This section has been held not to affect the exemption by sect, 353, 
 from the necessity of employing licensed pilots, of masters piloting 
 their own ships without the aid of an unlicensed pilot, an exemption 
 
 (a) Sects. 370, 376. clirocts she shall not perform witbout a pilot j 
 
 (6) Sect. 377. if, therefore, the vessel be bound fortheriver, 
 
 (c) Sect. 378. It was decided by tlic the penalties imposed are not assessed on 
 
 Court of Common Pleas, on the 11th section the pilotage due from Dungeness to the 
 
 of the 52 Geo. 3, corresponding to this, Downs, but on that which would be due on 
 
 that the penalties for not taking a pilot on the ship's arrival at her ultimate place of 
 
 board as soon as the vessel passes Dungeness, destination in the river. Mackie v. Landon, 
 
 are to be ascertained by the voyage which 6 Taunt. 256 ; 1 Marsh. 585. 
 she is about to perform, and which the Act (rf) Sect. 379.
 
 5. WHAT VESSELS I^EED NOT TAKE. 157 
 
 continued from the 6 Geo. 4^ c. 125^ s. 59, and wliich applies to Chap. 7. 
 ships carrying passengers as Avell as to ships not carrying them (e). 
 
 The enactment that the employment of a pilot in the London 
 district shall not be compulsory iipon ships trading to any place 
 north of Boulogne when not carrying passengers, covers inward as 
 well as outward voyages. A vessel, therefore, not carrying passengers 
 on a voyage from Cronstadt to London was held to be exempt from 
 compulsory pilotage in the river Thames (/) . But the master of a 
 ship carrying passengers between any place in the U, K. or the 
 islands of Guernsey, Jersej^, Sark, Alderney, and Man, and any 
 other place so situate, is bound, by the express words of section 354 
 of the M. S. Act, 1854, which is not restricted by section 353, to 
 employ a licensed pilot, when navigating upon waters situate within 
 the limits of any district for which pilots are licensed by any pilotage 
 authority, unless he or his mate has a pilotage certificate enabling 
 them to pilot such ship within such district [g] . 
 
 The masters and owners of ships passing through the limits of any 
 pilotage district in the U. K. on their voyages between two places, 
 both situate out of such districts, are exempted from any obligation 
 to employ a pilot within such district, or to pay pilotage rates when 
 not employing a pilot within such district ; but this exemption is not 
 to apply to ships loading or discharging at any place situate within 
 such district, or at any place situate above such district on the same 
 river, or its tributaries {h). 
 
 6 Geo. 4, c. 125, gives power to H. INI. in Council to exempt 
 certain ships from compulsory pilotage. See also M. S. Act, 1854, 
 ss. 332, 353; see Order in Council;, 18tli Februarv, 1854. 
 
 See 6 Geo. 4, c. 125, s. G2, note to s. 353. 
 
 By Order in Council of the 16th day of July, 1857, "All ships Orders m 
 mentioned in the 379th section of ' The Merchant Shipping Act, ^'''''^'^!! ^' ^^ 
 1854,^ shall be exempted from compulsory pilotage in the London from compul- 
 district and in the Trinity House outport districts, as well when sory pilotage. 
 carrying passengers as when not carrying passengers, provided, as 
 regards any such ship when carrying passengers, the master or his 
 mate have a pilotage certificate in force for the time being, enabling 
 such master or mate to pilot such ship within such district or 
 districts, granted under the provisions either of the 340th or of the 
 355th section of the said Act.^^ 
 
 By Order in Council of the 25th day of July, 1861, "All ships 
 navigating in ballast from any port or place in the United Kingdom 
 to any other port or place in the United Kingdom, shall, when not 
 carrying passengers, be exempt from compulsory pilotage within the 
 pilotage jurisdiction of the said Trinity House." 
 
 By Order in Council of the 21st December, 1871, "All ships, 
 trading from any port or place in Great Britain, within the London 
 
 (e) Heg. v. Stanton, 8 E. & B. 445. (/) The Wesley, Lusli. Ad. 2G8. 
 
 Harl of Auckland, Lush. Ad. 66; 15 Moo. (ff) The Temora, Lush. Ad. 17. 
 
 P. P. 304. (A) 25 & 26 Yict. c. 63, s. 41.
 
 158 OF PILOTS — 
 
 Part III. district^ or any of tlie Trinity House ontport districts to the port of 
 
 Brest^ in France^ or any port or place in Europe north and east of 
 
 Brestj or to the Islands o£ Guernsey^ Jersey^ Alderney, Sark, or 
 Man, or from Brest, or any port or place in Europe north and east 
 of Brest, or from the Islands of Guernsey, Jersey, Alderney, Sark, or 
 Man, to any port or place in Great Britain within either of the said 
 districts, -when not carrying passengers, shall be exempted from 
 compulsory pilotage "within such districts.'^ 
 
 As to pilots for exempted vessels^ see Order in Council of 5th 
 February, 1873. 
 
 6. Miscellaneous. 
 
 For the offences of pilots, and the penalties incurred by them for 
 such offences [a] — the liability for pilotage of consignees or agents of 
 ships, Avho have paid or made themselves liable to pay any other 
 charge on account of such ships [b] — the rates of pilotage payable to 
 Trinity House pilots [c] — the payment to the collector of customs of 
 pilotage due from foreign ships trading to and from the port of 
 London, and the right to detain such ships until the pilotage is paid [d) 
 — the settlement of differences between the master and the qualified 
 pilot of any ship trading to or from the port of London as to her 
 draught of water, by which the rates of pilotage are regulated (e) — 
 and the Trinity House pilot fund (/), the reader is referred to the 
 statute. 
 
 As to signalling for pilots, see 36 & 37 Vict. c. 85, ss. 19, 20; 
 M. S. Act, 1874, p. 378. As to the extent of the liability of Trinity 
 House pilots, see ss. 372, 373 of M. S. Act, 1854. 
 
 It is a settled doctrine of the Court of Admiralty that no pilot is 
 bound to go on board a vessel in distress, to render pilot service, for 
 mere pilotage reward. " If a pilot,""^ said Dr. Lushixgtox, "^^ being 
 told he would receive pilotage only, refused to take charge of a vessel 
 in that condition, he would be subjected to no censure; and if he did 
 take charge of her, he would be entitled to a salvage remuneration [g). 
 And if a vessel out at sea, beyond the limits of pilotage ground, 
 requires assistance, that is salvage, not pilotage^^ {h). 
 
 There is not between the owners of a ship and a pilot whom they 
 are compelled to employ an implied contract that the pilot shall take 
 upon himself the risk of injury from the negligence of the ship- 
 owner's servants (?) . 
 
 (a) Sect. 365, 17 & 18 Vict. c. 104. (e) Sect. 384. 
 
 (J) Sect. 363. (/) Sect. 385. 
 
 (c) Sect. 380; 35 & 36 Vict. c. 73, s. 9 ; {g) The FredericJc, 1 Wm. Eob. 16. 
 
 Order in Council, 5th Februarv, 1873. (A) The Sedioig, 1 E. & A. 19. 
 
 {d) Sects. 381, 383. ' (0 Smith v. Steele, 44 L. J. Q. B. 60.
 
 7. EXEMPT[ON OF OWNERS WHEN EHPLOYED. 159 
 
 Chap. 7. 
 
 7. Exemption of Owners and Masters from Liability in case of 
 Damage by Fault of Pilot. 
 
 " No owner or master of any ship shall be answerable to any person 
 whatever for any loss or damage occasioned by the fault or incapacity 
 of any qualified pilot acting in charge [k) of such ship, within any 
 district where the employment of such pilot is compulsory (/) by 
 law" {m) . By this enactment the law, after much variety of deci- 
 sion {n), is finally settled in conformity with the construction put 
 upon the corresponding section of the former Act by Dr. Lushington, 
 in the case of the Protector. It was decided by that learned judge, 
 on the 14th and 58th sections of the 6 Geo. 4, c. 125, that the exemp- 
 tion from liability provided by the Act was limited to the case of 
 vessels having a pilot on board under its provisions, and where a 
 damage was occasioned solely and entirely through the negligence, 
 incapacity, or misconduct of the pilot on board ; that the owners were 
 protected in those cases only in which the pilot was the sole author 
 of the injury ; that the onus of proving him to have been so, lay upon 
 them; and that if the misconduct, &c., of the master or crew, or the 
 unmanageableness of the vessel owing to her not being in ordinary safe 
 trim, a matter within his province (o) , were contributory to it, the 
 owners continued liable {p) . This decision, overruling the case of 
 Bennett v. Moita {q), by which, prima facie, the pilot and not the 
 owner was held liable for negligence in the management of the 
 vessel, was affirmed in a later case by the Judicial Committee of the 
 Privy Council (r). 
 
 (If) ThePri«ce^»,47L. J. Ad. 33;L. R. 50; see the Hibernian, 42 L. J. Ad. 8, a 
 
 3 P. D. 90; the Annapolis, 1 Lusli. 255; case under Canadian Acts. 
 
 the Woburn Alley, 38 L. J. Ad. 28; the (») Bennett v. Moita, 7 Taunt. 258; 
 
 City of Cambridge, 43 L. J. Ad. 11. Ritchie v. Boiisfiehl, ib. 309; Carruthers v. 
 
 (l) The Lion, 38 L. .1. Ad. 51; L. E. 2 Sydebotham, 4 M, & S. 77; Aif.-Gen. v. 
 
 Ad. 102 ; the Hanna, 36 L. J. Ad. 1. See Case, 3 Price, 302. 
 
 Boucher \. Nordstrom, I Taunt. 568; the (o) The Argo, Swab. 462. To the pilot 
 
 Eden, 2 W. Rob. 442 ; the City of Cam- belongs the whole conduct of the naviga- 
 
 Iridge, 43 L. J. Ad. 11, where it was held tion of the ship. The Christiania, 6 Moo. 
 
 that a ship was proceeding to sea within P. C. 371 ; the City of Cambridge, L. R. 5 
 
 the meaning of the Mersey Dock Act. Se« P. C. 451 ; and where a ship is being towed 
 
 Hodrigues v. 3Mhuish, 10 Ex. 110. his authority extends both to the tug and 
 
 (wi) Sect. 388. "\Miere it appeared that a the tow. The Energy, L. R. 3 A. & E. 48; 
 
 collision had been caused by the swinging the Chadon, 14 Moo. P. C. 92. See the 
 
 out of the straight line of the last of three Mary, 48 L. J . Ad. 66, where the tug was 
 
 vessels towed by a steamer, but that the held liable, though a pilot was compulsorily 
 
 swinging was caused by the improper steer- ou board the tow. 
 
 ing of a licensed pilot on board, it was held (p) The Protector, 1 Wm. Rob. 45 ; the 
 
 that the owners were exonerated. The Jiana, ib. 106; the ^^WcoZa, 2 W. R.; and 
 
 Qipsy King, 11 Jur. 397. Where a foreign see the Diana, 1 Wm. Rob. 131 ; Short v. 
 
 ship was moored in a harbour, and a British Iremonger, 1 Wm. Rob. 131, S. C. ; the 
 
 ship, having a licensed pilot on board, in Massachusetts, 1 Wm. Rob. 371; the 
 
 anchoring near, ran foul of her and caused George, 3 Wm. Rob. 386; the Admiral 
 
 damage, it was held that some blame Boxer, Swab. 193 ; the Argo, ib. 462. 
 being imputable to the pilot, but not evi- {q) Supra. 
 
 deuce enough to fix any blame on the master {r) Hammond v. Rogers, 7 Moore, P. C. C. 
 
 or the crew of the British ship, her owners p. 160. See also Rodrigues v. Melhuish, 
 
 were exonerated. The Atlas, 5 Ecc. & Mar. 10 Ex. 110; 24 L. J. Ex. 26.
 
 160 OP PILOTS — 
 
 Part III. In an elaborate endeavour («) to reconcile tlie apparently con- 
 
 flicting decisions of Carndhers v. Sydebotham [b], in tli3 Qneen-'s 
 
 Bench, and the Alt. -Gen. v. Case [c], in the Exchequer, Dr. Lush- 
 INGTON laid down the rule, that no one should be chargeable with the 
 act of another, who is not an agent of his own choice — a rule to Avhich 
 lie afterwards adhered {d) in the case of a ship by which damage had 
 been done in obeying the orders of a harbour-master, acting under 
 the authority of the Harbours, Docks, and Piers Clauses Act, 
 1847 [e] . 
 
 A defendant, relying upon the statutory exemption, must prove 
 his case (/) ; it is not enough to show that a pilot was on board {g). 
 The fault or incapacity of a waterman employed by the master to 
 assist the pilot, but who misunderstands or disobey's the pilot's 
 orders, is not the fault of the pilot {h) . As a general rule, it is the 
 master's duty to repeat, if necessary, the pilot's orders, and for every 
 manoeuvre so carried out the pilot remains solely responsible (i). 
 The course of the ship is within the province of the pilot, and if the 
 circumstances, in his judgment, be such as justify a departure from a 
 statutory rule- — e.g., to keep to the starboard side of a narrow channel 
 — it is the master's duty to submit {k). 
 
 Cases, however, may arise in which it is not only the master's 
 right but his duty to resume his authority. If the pilot should be 
 plainly incompetent, through intoxication or other cause, and the 
 vessel should be endangered by his mismanagement, the master is 
 bound to interfere (/). 
 Where col- If a collision occurs abroad within the jurisdiction of some foreign 
 
 Usion abroad, country, and while the ship doing the damage is in the compulsory 
 charge of a pilot, such ship cannot be sued in England, even though 
 she is liable for the damage by the laws of that foreign country {ni). 
 Costs in action In an actiou of damage in the Court of Admiralty, if the only 
 where defence defence is that the collision was caused by the negligence of a pilot 
 that pilot to taken by compulsion of law, the defendants, if successful in estab- 
 ^°^^' lishing this defence, are entitled to costs {n) ; but it is otherwise in 
 
 this Court if there are other defences, 
 
 8. Pilotage of Foreign Ships, 
 
 The regulations of the statute respecting compulsory pilotage apply 
 to foreign ships in British ports (o) . 
 
 (a) The Maria, 1 W. E. 106. (0 The Admiral Boxer, Swah. 193. 
 
 {b) Ante, p. 159. i^-) The Argo, Swah. 462. 
 
 (c) ^«/e, p. 159. {I) The Girolamo, 3 Hagg. 176; the 
 
 {d) The Bilbao, 1 Lush. 149. Lochlibo, 3 ^\m. Eob. 321 ; the Duke of 
 
 (e) 10 Vict. c. 27. Manchester, 10 Jur. 863; Hammond v. 
 
 (/) Tlie -S'c/iWrt^Je, 1 Lush. 239. jRogers, 7 Moore, P. C. C. 160; Eod- 
 
 (g) The Mobile, Swah. 69, 127. The riguez v. Melhuish, 2 W. K. 518. 
 
 burden of proof is on the plaintiff when (»») The Salleg, L. R. 2 P. C. 193. 
 
 shown that pilot in fault, and that his {n) The Juno, 45 L. J. Ad. 105. This 
 
 orders were obeyed; see the Owners of rule is not adopted in the Common Law 
 
 Velasquez v. Owners of Star of Ceglon, 36 Divisions of the High Court of Justice. 
 
 L. J. Ad. 19 ; the Marathon, 48 L. J. Ad. (o) Sect. 381. The Annapolis, Lush. 
 
 17; the Daisg, 47 L. J. Ad. 1. 308, 330. 
 (h) The General de Caen, Swab. 9.
 
 CONVEIANCE OF PASSENGERS IN MEfiCHANT SHIPS. 161 
 
 Chap. 8. 
 
 CHAPTER VIII. 
 
 OF THE CONVEYANCE OF PASSENGERS IN MERCHANT SHIPS; AND 
 
 HEREIN^ 
 
 Sect. 1. The Eiglds and Duties of the Master and Passengers, p. 161. 
 
 2. Contracts for the Conveyance of Passengers, and Cases decided upon them, 
 
 p. 162. 
 
 3. Passengers Acts, p. 166. 
 
 4. Passenger Steamers, p. 169. 
 
 5. Provisions for the Prevention of Miscondu.ct and Accidents on Passenger Ships, 
 
 p. 169. 
 
 The increase of intercourse between the U. K. and distant countries, 
 and the extent to which emigration has of late years been carried (p), 
 suggest the propriety of adverting to that branch of the law of mer- 
 chant ships and seamen which relates to the conveyance of passengers. 
 It will be convenient to consider the matters connected with this 
 subject under two heads : the rights and duties of the master and 
 passengers ; and the regulations which the legislature has established 
 in relation to them. 
 
 1. Of the Rights and Duties of the Master and Passengers. 
 
 The grave responsibility of the person to whose skill and conduct 
 life and property are entrusted on the ocean, and the situations of 
 unforeseen emergency to which he may be reduced in exerting him- 
 self for their preservation, render it necessary that he should be 
 invested with large, and, for the time at least, unfettered authority. 
 Obedience to this authority, in all matters within its scope, is a duty 
 which should be cheerfully discharged by every passenger on board 
 the ship. Whatever is necessary for the security of the vessel, the 
 discipline of the crew, the safety of all on board, the master may 
 lawfully require, not only of the ship^'s company, who have expressly 
 contracted to obey him, but of those also whom he has engaged to 
 caiTy to their destination, on the implied condition of their sub- 
 mission to his rule {q) . The exercise of power thus undefined must, 
 at his peril, be restricted to the necessity of the case ; and, on the 
 ground of such necessity, and within its limits, he may enforce and 
 justify orders which would otherwise expose him to censure, to civil 
 liabilities, and to punishment. 
 
 A passenger who is found on board in time of danger is bound, at 
 
 (p) As to whether shipowners carrying Bennett v. The Peninsular Steam-boat Co., 
 passengers beyond the seas are common 6 C. B. 775. See jiosf. Part IV., ch. 4. 
 cairiers within the custom of thereahn, see (3) Boijce v. Bagliffe, 1 Camp. 58. 
 
 M
 
 162 CON^TIYAXCE OF PASSENGEES IN SHIPS — 
 
 Part III. the master's call^ to do works of necessity in defence of tlie stip^ if 
 
 attacked, and for the preservation of the lives of all on hoard {a) ; 
 
 yet, as he may lawfully, except under peculiar circumstances, depart 
 the ship, should he voluntarily remain, at the risk of his personal 
 safety, to assist her in her distress, he may be entitled to remunera- 
 tion, in the nature of salvage, for his service [b) . In an action of 
 assault and false imprisonment on board an East Indiaman, in a 
 voyage from Bombay to Calcutta, it appeared that the plaintiff was a 
 passenger in the gunner's mess, and that the defendant was captain 
 of the ship. Near the Cape of Good Hope, two strange sail were 
 descried in the offing, supposed to be enemies. The defendant im- 
 mediately mustered all hands on deck, and assigned, to every one his 
 station. The plaintiff, with the other passengers, he ordered on the 
 poop, where they were to fight with small arms. This order all 
 readily obeyed, except the plaintiff, who, conceiving he had been ill- 
 used by the defendant some time before, in being forbidden to walk 
 on the poop, positively refused to go there, but offered to fight in 
 any other part of the ship with his messmates. The defendant, for 
 this contumacy, ordered him to be carried upon the poop, and kept 
 him there in irons during the whole night. Next morning, no enemy 
 appeared, and the ship arrived safe at St. Helena, where the plaintiff 
 quitted her. Lord Ellenborough at first said that he did not know 
 that the confinement of the plaintiff was not necessary, and therefore 
 justifiable ; but when it came out that he had been kept all night in 
 irons on the poop, he clearly held that the defendant had exceeded 
 the limits of his authority (c) In all such cases, the propriety of the 
 conduct which is questioned will in general be most satisfactorily 
 determined by bringing an action in one of the common law divisions 
 of the High Court of Justice [d) , 
 
 2. Contracts for the Conveyance of Passengers, and Cases decided 
 
 upon them. 
 
 In the case of an express contract, the rights of the parties will cf 
 course be governed by its terms, but the usage of particular trades 
 and voyages may often influence their interpretation. "Where the 
 contract is not express, it may be evidenced by such usage. A 
 few miscellaneous cases on this subject may properly be noticed 
 here (e). 
 
 (a) Neioman v. Walters, 3 Boss. & Pull, ou qu'il est un commutihateur el malfaiseiir 
 612. en ean salee, en tel ca.t s'il est convict ]m)' 
 
 (b) Ibid., and see the Tioo Friends, 1 \2, il sera emprisonne par 21 jours, et plus 
 Rob. Rep. 285; the Bearer, 3 Rob. Rep. il sera Jin an Boif." — Bl. B. Admiralty, 
 292 ; the Joseph Harraii, 1 Rob. Rep. 306. art. 12. See as to the present jnnsdictiou 
 
 ((■) Boyce v. Bai/liffe, 1 Caiupb. 58. of the Court of Admiralty, see ante, p. 3, 
 
 (rf) See the Ruckers, 4 Rob. Ad. Rep. note (e); Preface to this Edition. 
 73. It appears from the Black Book of the (e) See, iipon the question how far parol 
 
 Admiralty, that jurors were formerly sum- evidence of usage is admissible for the pur- 
 
 moued to the Admiralty Sessions : " Si un pose of annexing incidents to or explaining 
 
 homme est endite qu'il a batu tine personne. the meanina- of written contracts, the judg-
 
 163 
 
 lu the case of Corbin v. Leader (f), the defendant^ the master of Chap. 8. 
 
 an East Indiaman about to sail from Calcutta, on a voyage to 
 
 London, by an agreement under seal, granted and let to the plaintiff 
 the whole of the cabins and accommodations fitted up for the recep- 
 tion, convenience, and conveyance of passengers on board the ship ; 
 and the defendant covenanted to promote as far as in him lay the 
 comfort and convenience of the plaintiff, and such persons as he 
 should engage and contract with, and who should be received as 
 passengers in and on board the said ship ; in consideration whereof 
 the plaintiff covenanted with the defendant, among other thiugSj to 
 pay the defendant the sum therein agreed on ; and that he would in 
 every respect support and uphold the authority and command of the 
 defendant, and in no way interfere with the management or naviga- 
 tion of the ship, or with the affairs thereof. The plaintiff' further 
 covenanted, that if, in the progress of the voyage, it should be neces- 
 sary for the convenience and at the request of the plaintiff to touch 
 or put into any other intermediate port or ports, save and except 
 St. Helena, he would bear and pay all port and other necessary 
 charges which might be incurred thereby. The court held that this 
 stipulation as to the payment of the charges of touching at an inter- 
 mediate port, thus interwoven with the covenant of the defendant, 
 clearly showed that stopping in the course of the voyage was a thing- 
 contemplated by the parties as conducive to the convenience of the 
 passengers, and that the defendant was bound so to stop at the 
 request of the plaintiff, unless it would have interfered with the safety 
 of the vessel. 
 
 In an action of assumpsit by the master of an East Indiaman, 
 against a lieutenant in the company's service, Avho had been his 
 passenger on a voyage from Madras to London, it appeared that, by 
 an order of the Court of Directors, officers of that rank were to pay 
 1,000 rupees, and no more, for '^' their passage and accommodation 
 at the captain's table,'' and tliis sum was paid into court. For the 
 plaintiff, it was contended that the defendant, for the regulation 
 price, was only entitled to swing his cot in the steerage, and that he 
 had been allowed a cabin to himself, for Avhich the additional pay- 
 ment was required. Evidence having been given that during the 
 voyage no ofiicers slept in the steerage, and that the defendant's 
 cabin would have remained empty had he not occupied it. Lord 
 Ellenborough was of opinion that there was nothing to raise an 
 implied promise to pay more than the regular sum {g) . 
 
 The case of Gillan v. Simpkin was an action for money had and 
 received, to recover passage money paid to the defendant, as master 
 of a ship, in which he had agreed to carry the plaintiff as a passenger 
 to Antigua. The plaintiff, who had paid the money before the com- 
 mencement of the voyage, had intended to have gone on board at 
 
 meut of tlie Court of Exchequer, delivered to sending an unseawortliy ship to sea being 
 
 by Mr. Baron Paeke, in the case of Eutton a misdemeanor, &c., see 39 & 40 Vict. c. 80. 
 V. Warren, 1 M. & W. 474. As to war- (/) 10 Bing. 275. 
 
 ranty of seaworthiness, see Redhead v. {g) Adderley v. CooJcson, 2 Campb. 15. 
 
 Midland Stj. Co., L. R. 4 Q. B. 301. As 
 
 M 2
 
 164 CONVEYANCE OF PASSENGERS IN SHIPS — 
 
 Part III. Portsmouth, but tlie luggage -was shipped iu the river Thames, and 
 
 in proceeding round from thence to Portsmouth the ship "was lost. 
 
 It appeared in the evidence that it is usual for the passage money to 
 he paid in London, and that the stores for the use of the passengers 
 were always put on board in the river. Gibbs, C. J., in his direction 
 to the jury, said, '' If the money had been to be paid at the end of 
 the voyage, the defendant could not have recovered any part of it, 
 there being an entire contract to carry the plaintiff from London to 
 Antigua ; but if the voyage was commenced, and the ship was pre- 
 vented from completing it by the perils of navigation, the captain 
 may be entitled to retain the passage money previously paid to him. 
 The contract for this purpose may either be express, or evidenced by 
 established usage. Here it is proved that in "West India voyages the 
 passage money is paid before the voyage commences, and it does not 
 appear to be returned, although the voyage is defeated ; on the other 
 hand, if the ship were lost before the commencement of the voyage 
 for which the parties had contracted, the money paid by anticipation 
 must be returned^' («). 
 
 The master of a vessel sought to recover damages from the 
 defendant for the breach of a verbal agreement, by which he engaged 
 two cabins on a voyage from England to INIadras for a certain price. 
 He refused to go, because the vessel, which was to have left the 
 docks by the lOth of October, did not do so. It was proved to be 
 the rule of the East India trade, that when a passenger refused to go, 
 in consequence of a delay in the sailing of a vessel, he was to forfeit 
 half the amount of the passage money agreed for. The ship did not 
 leave the docks until the 2Ist of October. Tixdal, C. J., directed 
 the jury to find for the plaintiff, with half the passage money 
 as damages, if they thought that the time of sailing was matter 
 of representation, but not an essential part of the contract, and that, 
 under the circumstances, the ship had sailed withiu a reasonable 
 time (5). 
 
 Where emigration agents and owners of ships sailing to Australia, 
 in answer to an application respecting a passage, sent a circular to 
 the plaintiff, which stated that certain ships would be despatched on 
 appointed da3's (wind and weather permitting), for which written 
 guarantees would be given; and the plaintiff engaged a berth on 
 board the Asiatic, which was named to sail from London on the 
 15th of August, and from Plymouth on the 25th, and paid a deposit, 
 but no written guarantee was given ; it was held, that the statement 
 in the circular was not a mere representation, but a warranty that 
 the Asiatic would sail on the days appointed, and that as she did not 
 sail until ten days after, the plaintiff was justified in taking a 
 passage on board another vessel, and entitled to recover from the 
 defendants the amount of the deposit, and the expenses he had been 
 put to, by the delay (c) . 
 
 (a) 4Campb.241 j %Qe Leman v. Gordon, (b) Yates v. Buff, 5 Car. and P. 369. 
 
 8 Car. & P. 392, {c) Cranston v. Marshall 5 E.\ch. 395.
 
 2. CONTRACTS FOE. 165 
 
 In an earlier case, in which the plaintiff sought to recover Chap. 8. 
 
 passage money on an implied assumpsit j»>*o rata itineris peracti, it 
 
 appeared that he had contracted to carry the defendant, his family, 
 and luggage from Demerara to Flushing ; and that in the course of 
 the voyage, and within four days^ sail of Flushing, the ship Avas 
 captured by an English ship of war, and brought to England. The 
 ship and cargo were libelled iu the Court of Admiralty, and pro- 
 ceedings were pending against the ship, but the defendant and his 
 family were liberated, and his luggage restored to his possession. 
 The court was of opinion, that if the ship had been restored, the 
 action might have been maintained, but that as the result of the 
 proceedings in the Court of Admiralty might be the condemnation 
 of the ship, and decree of her freight to the captors, it was premature 
 while that suit was pending {d) . 
 
 The executors of an East India captain, who had died in the East 
 Indies before the commencement of the homeward voyage, brought 
 an action against the chief mate of his ship, on whom the com- 
 mand had devolved, to recover the amount of the sum he had received 
 from the passengers brought home in the ship, for their passage and 
 entertainment during the voyage. It was contended for the plaintiff, 
 that the passage money must belong to the representatives of the 
 captain ; for the defendant, that he was entitled to the whole, 
 because he had the actual command during the voyage. " 1^/' said 
 Mr. Justice Bayley, " there be no usage on the subject, I think the 
 law is, that where the captain has contracted to carry passengers, 
 and dies, his representatives are entitled to the benefit of the 
 contract, and may maintain an action for the passage money. If 
 the mate lays out money in purchasing stores for such passengers, 
 he is the agent of the representatives for that purpose, and may 
 oblige them to repay him. But Avhere, after the death of the 
 captain, the mate contracts to carry passengers on the homeward 
 voyage, he is himself entitled to the benefit of the contract, and may 
 retain the whole of the passage money. If for the entertainment of 
 such passengers he has any part of the stores laid in by the captain, 
 for so much he must account to the captain^s representatives'' (e). 
 
 In an action against a captain of a ship for not furnishing good 
 and fresh provisions to a passenger on a voyage, Lord Denman said, 
 in his address to the jury, " I think the result of the evidence is, 
 that the captain did not supply so large a quantity of good and 
 fresh provisions as is usual under such circumstances. But there is 
 no real ground of complaint, no right of action, unless the plaintiff 
 has really been a sufferer ; for it is not because a man does not get 
 so good a dinner as he might have had, that he is therefore to have a 
 right of action against the captain who does not provide all that he 
 ought ; you must be satisfied that there was a real grievance sus- 
 tained by the plain tiff'' (/). 
 
 {d) MuUoy V. Bdcke,', 5 East. 316. (/) Youxj v. Feioso,i, 8 Cur. & V. 53. 
 
 (e) Slordet v. Brodle^ 3 Cauipb. 253i '
 
 166 CONVEYANCE OF PASSENGEES IN SH]PS. 
 
 Partrill. An action -was brought by a captain in the army against a captain 
 of the ship Bolton, to recover damages for the breach of a contract, 
 by which he nndertook to convey the plaintiff as a cuddy passenger 
 on a voyage from Madras to London. The plaintiff complained, 
 among other things, that the defendant did not treat him as a cuddy 
 passenger, but excluded him from the cuddy, and from walking on 
 the weather side of the ship. The defence was, that the conduct of 
 the plaintiff was vulgar, offensive, indecorous, and unbecoming, and 
 that he had threatened to cane the defendant. Upon these grounds 
 of defence, Tixdal, C. J., observed, " There is some e"\ddence that 
 the plaintiff was in the habit of reaching across other passengers, and 
 of taking potatoes and broiled bones with his fingers. It w^ould be 
 difficult to say, if it rested here, in what degree want of polish would, 
 in point of law, warrant a captain in excluding a passenger from the 
 cuddy — conduct unbecoming a gentleman, in the strict sense of the 
 Avord, might justify him, but in this case there is no imputation of 
 the want of gentlemanly principle. With respect to the threat used 
 by the plaintiff, ^ that he would cane the defendant,' it is important 
 to consider whether it was heard by the defendant before he gave the 
 order for the exclusion of the plaintiff from the cuddy. If it did 
 operate on the mind of the defendant at the time of the exclusion, I 
 cannot conceive that such conduct would not justify that exclusion. 
 A man Avho has threatened the commanding officer of a ship with 
 personal violence would not be a fit person to remain at the table at 
 Avhich he presided" («) . 
 Lien for It has been decided that the master of a ship has a lien on the 
 
 passage luggage of a passenger for his passage money, but not on the clothes 
 
 ^^' which he is wearing when about to leave the vessel {b). 
 
 Chmse pro- The folloAving condition in a passage ticket, " the ship shall not 
 
 tccting owner jjg accountable for luggage, goods, or other description of property, 
 
 eoods."^ ° unless bills of lading have been signed therefor,''^ has been held to 
 
 protect the owners of a ship from liability for the loss of a passenger's 
 
 luggage, although the ship was lost with it on board through the 
 
 neglect of the master [c) . 
 
 3. Passengers Acts. 
 
 Breaches of contract and injuries like to those complained of, in 
 the cases which have been cited, the common law of personal actions 
 was found adequate to repress. Experience, hoAvever, proved that 
 the ignorance and the credulity of indigent persons requiring cheap 
 modes of couATyance, and seeking ncAv fortunes beyond the seas, 
 often placed them at the mercy of men A^'ho, familiar Avith the 
 dangers of navigation, were willing to brave all risks in the prospect 
 
 («) Pt'etidei'gast v. C'o//t/;^ow, 8 Car. <t P. {h) Woolfx. Summers, 2 Canipb. 63l. 
 
 454. The report sets out in a special plea (c) WiUoil v. The Atlantic Eoyal Mail 
 
 the acts of misbehaviour imputed to the Co., 10 C. B. (n.s.) 453. 
 plaintiff.
 
 3. PASSENGERS ACTS. 167 
 
 of gain, and the legislature has, by various statutes applicable to Chap. 8. 
 
 different trades and voyages, interposed to protect unwary emigrants 
 
 from the fraud and cupidity of unprincipled shipowners. Security 
 for the sea-worthiness of the ship — a due proportion between her 
 tonnage and the number of her passengers — the preservation of their 
 health during the voyage — and an adequate supply of water and 
 provisions for their use, were the principal objects to be attained, 
 and these it was not found easy to reconcile, with a just consideration 
 for the important interests which it had become necessary to regulate, 
 and the small ability of those for whom protection was required. 
 It has been proved, unhappily, by the continued recurrence of dis- 
 asters, appalling to humanity, and too surely traced to evils which 
 legislation might remove, that if much good has been effected by 
 the enactments which we are about to consider, much yet remains to 
 be done. 
 
 In the reign of Geo. 3, an Act [d) was passed, which, after reciting 
 that in various parts of the U. K. several persons had been seduced 
 to leave their native country under false representations, and had 
 suffered great hardships on shipboard for want of water and provi- 
 sions, and other necessaries, and of proper accommodation on their 
 passage, proceeded to establish general regulations for the carriage of 
 passengers to foreign parts. Other provisions were made in the same 
 reign for regulating the carriage of passengers to and from the U. K. 
 to Newfoundland and the coast of Labrador (e), the United States (/), 
 and the British colonies in North America (g) ; and these enact- 
 ments may be considered the groundwork of subsequent legislation 
 on this subject. 
 
 All these statutes were repealed by the 4 Geo. 4, c. 8i, "^'for regu- 
 lating the carriage of passengers from the U. K. to foreign parts ;^' 
 and this Act having also, about two years afterwards, been repealed 
 the Act for the consolidation and amendment of the laws relating to 
 the customs, 6 Geo. 4, c. 116, " for regulating vessels carrying pas- 
 sengers to foreign parts,'^ was passed. 
 
 By 9 Geo. 4, c. 21, further provisions were introduced to regulate 
 the carriage of passengers from the U. K. to the continent and islands 
 of North America ; which Act was repealed by 5 & 6 Will. 4, c. 55, 
 " for regulating the carriage of passengers from the U. K.^^ The 
 last-mentioned Act was repealed by 5 & 6 Vict. c. 107, which, as 
 well as 8 & 9 Vict. c. 14, 10 & 11 Vict. c. 103, 11 & 12 Vict. c. 6, 
 12 & 13 Vict. c. 33, 14 Vict. c. 1, and 15 & 16 Vict. c. 44, have been 
 superseded by the Passengers Act, 1855, 18 & 19 Vict. c. 119; Pa^^eng^'j-s 
 which with the Acts for amending such Act, with a reservation of the ^^^' '-^'^'^' 
 provisions of 16 & 17 Vict. c. 84, relating to the passage of natives 
 of Asia or Africa, and passages between the island of Ceylon and 
 certain parts of the East Indies, now contain the law upon this 
 subject. 
 
 (d) 43 Geo. 3, c. 56. (/) 56 Geo. 3, c. 114. 
 
 (e) 53 Geo. 3, c. 36; 56 Geo, 3, c. 83. iff) 57 Geo. 3, c, 10.
 
 168 CONVEYANCE OF PASSENGERS IN SHIPS. 
 
 Part III. This Act (Tlie Passengers Act, 1855) came into operatiou on the 
 1st of October, 1855. It is to be carried into effect by the Board of 
 Trade (a). 
 
 The definition of a passenger ship, is now declared to signify every 
 description of sea-going vessel, whether British or foreign, carrying, 
 npon any voyage to which the provisions of the amended Act extend, 
 more than 50 passengers, or a greater nnmber of passengers than in 
 the proportion of one statnte adult to every thirty-three tons of regis- 
 tered tonnage if propelled by sails, or than one statute adult to every 
 20 tons if propelled by steam {b) . 
 
 The expression " Passengers '' in it is declared by sect. 3 of 18 & 19 
 Vict. c. 119, to include all passengers except cabin passengers (c), 
 and except labourers under indenture to the Hudson^s Bay Company, 
 and their families, conveyed in ships, the property of and chartered 
 by the said Company ; and no persons shall be deemed cabin pas- 
 sengers unless the place allotted to their exclusive use shall be in the 
 proportion of at least 36 clear superficial feet to each statute adult, 
 nor unless they shall be messed together throughout the voyage at 
 the same table with the master or first officer of the ship, nor unless 
 the fare contracted to be paid by them respectively shall be in the 
 proportion of at least 30^. for every week of the length of the voyage, 
 as computed under the provisions of the Act for sailing vessels pro- 
 ceeding from the U. K. to any place south of the Equator, and of 
 20s. for such vessels proceeding to any place north of the Equator, 
 nor unless they shall be furnished with a duly signed contract ticket 
 in a prescribed foi'm. 
 
 A great variety of provisions are enacted in the Passengers Act, 
 having for their object the protection from imposition, the number, 
 health, medical care in sickness, diet, berthing, and safety of the 
 passengers ; the " rights of passengers ; '' the return of their passage 
 money, and compensation if a passage be not provided pursuant to 
 contract ; their maintenance for a period after their arrival ; the 
 construction, ventilation, and internal arrangements and survey of 
 the ship ; the number of boats, life-boats, and life-buoys it must carry; 
 the computation of voyages ; the quantity of water and provisions to 
 be provided for each statute adult passenger — i.e., of the age of twelve 
 years or upwards ; the licensing of passage brokers, and other miscel- 
 laneous matters, for the detail of which the reader is referred to the 
 Acts in the Appendix. By sect. 59 of 18 & 19 Vict. c. 119, power 
 is given to her Majesty in council to prescribe rules for preserving 
 order and securing cleanliness and ventilation on board the ship (d) ; 
 and by sect. 99, to the Governor-General of India in council (by 
 any Act to be passed for that purpose), to adopt its provisions for 
 India. 
 
 (a) 35 & 36 Vict. c. 73, s. 5. Steel v. (c) See Mlis v. Pearce, 27 L. J. M. C. 
 
 Sfliomherg, 4 E. & B. 623 j 2 1 L. J. Q. B. 87. 257. 
 
 {b) Ships not carrying a sufficient num- {d) Orders iu council have been made, 
 
 her of passengers to bring tliem within the and abstracts of same may be obtamedj sec 
 
 definition of passenger ships are sometimes sect. 61 of the Act. 
 called " short ships."
 
 5. I'KOVISIONS AS TO MISCOXDUGT, &C. 169 
 
 To obtain any useful knowledge^ for purposes of action or advice. Chap. 8. 
 
 of these enactments, and of those of the Passengers Acts, it is neces- 
 
 sary that the reader should refer to the very words of the statutes ; 
 and see 39 & 40 Vict. c. 80, s. 20. 
 
 4. Passenger Steamers. 
 
 The M. S. Acts and the Passengers Acts, contain also provisions 
 relating to the build, equipment, inspection, survey, and certificates 
 of passenger steam-ships (that is, all British ships carrying passengers 
 between any place or places in the U. K., except steam ferry-boats or 
 "bridges^' working in chains) — the number of passengers they are 
 certified to carry — the build of iron steamers, their engines, boats, 
 life-boats, life-buoys, and provisions to prevent the danger of colli- 
 sion, some of which Avill be noticed in the chapter on " Collision," 
 the reader being referred for the remainder to the Act (e) . 
 
 5. Provisions for the Prevention of Misconduct and Accidents on 
 board Passenger Ships. 
 
 As to the poAver of the Board of Trade to detain ships so over- Overloading 
 loaded as to be dangerous to human life, see 39 & 40 Vict. c. 80, s. 6, ^^'^'^' ^''' 
 et seq. As to foreign ships, see sect. 13 of the Act. 
 
 The 36 & 37 Vict. c. 85, ss. 23—28, relates to the carriage of 
 dangerous goods, and contain restrictions on carriage of same (/). 
 
 The 25 & 26 Vict. c. 63, ss. 35-37, inflict penalties on drunken Disorderly 
 and disorderly passengers, &c. {g) . passengers. 
 
 The master of any home-trade passenger steam-ship may refuse to 
 receive, or may put ashore at any convenient place without returning 
 his fare, any person who, by reason of drunkenness or other cause, is 
 in such a state, or misconducts himself in such a manner, as to cause 
 annoyance to other passengers (h). 
 
 The owner or master of any steam-ship, which has sustained or Reporting 
 caused any accident occasioning loss of life, or any serious injury to gg^rd of 
 any person, or has received any material damage aff'ecting her sea- Trade, 
 worthiness, is required, under a penalty of 50/., within 24 hours, or 
 as soon thereafter as possible, to send a report of the particulars 
 thereof to the Board of Trade {i) . 
 
 As to giving notice to the Board of Trade of the apprehended loss 
 of a ship, see 36 & 37 Vict. c. 85, s. 22. 
 
 And in every case of collision, in which it is practicable to do so. Entry iu log 
 the master is required, under a penalty of 20/., to enter, immediately °* collision. 
 
 (e) Sects. 291—329, some of these sec- 1855, s, 27. As to survey of passenger 
 
 tions are now repealed and others substi- steamers, see 35 & 36 Vict. c. 73, ss. 8, 13 ; 
 
 tuted as shown in the Appendix, As to 39 & 40 Vict. c. 80, ss. 14, 16, 18; 25 & 26 
 
 sending unseawoi'thy ships to sea and Vict. c. 63, s. 34. 
 
 detaining such ships, see 39 & 40 Vict. (/) See 38 & 39 Vict. c. 17, The Explo- 
 
 c. 80, s. 4, et seq. As to testing cables and sivus Act, 1875, j^ost. Part IV., ch. 5. 
 anchors of such ships, sec 37 & 38 Vict. (cf) See 17 & 18 Vict. c. 104, s. 324. 
 
 e. 51, s. 5. As to boats for ships, sec (A) Sect. 325. 
 
 36 & 37 Vict. c. 85, s. 15, Passengers Act, (0 Sect. 326.
 
 170 
 
 COXVEYANCE OF PASSENGERS IN SHIPS. 
 
 Part III. 
 
 Signals of 
 distress, &c. 
 
 after the occurrence, a statement thereof and of its circumstances in 
 the official log-book (if any), to be signed by himself, and by the mate 
 or one of the crew («). 
 
 As to signals of distress, &c., see 36 & 37 Vict. c. 85, ss. 18, 19, 
 20, 21 ; 25 & 26 Vict. c. 63, ss. 25—28, 30 ; 39 & 40 Vict c. 80, 
 ss. 14, 21. As to rules of inland navigation, see 25 & 26 Vict. 
 c. 63, ss. 31, 32. As to the Thames, see Order in Council, 
 5th Februarv, 1872. As to foreign ships in British jurisdiction, see 
 25 & 26 Vict. c. 63, ss. 57, 58, 61—64. 
 
 The followiny suggestions to Masters of Emigrant Ships respecting 
 Boats and Fire at Sea were issued by the Board of Trade in 
 June, 1873. 
 
 Having in view the fearful consequences which must result from 
 a want of preparation in the event of accident to an emigrant ship, 
 and especially oijire, this paper is prepared for the purpose of calling 
 special attention of the masters and officers of such ships to the pre- 
 cautions necessary to prevent such a calamity, and to the means of 
 encountering it should it occur. No scheme or regulations which 
 may be formed beforehand can of course supply the place of coolness, 
 judgment, and discipline at the time; nevertheless, the previous 
 establishment of regulations, and the familiarity of the officers and 
 crew with them, cannot but tend to obviate confusion and loss of 
 time when danger arises. It is from the hope of contributing to this 
 end, that the folloAving suggestions have been drawn up. 
 
 The first matter to be settled is the arrangement of the boats. 
 
 1. Boats. 
 
 Life-boats. 1. The life-boats should be carried at the quarters. Every boat 
 
 should be provided with painter, oars, boat-hooks, pins, plug, rudder, 
 and tiller, all of which are to be properly secured in the boats. All 
 the life-boats should be fitted with life-lines. The long-boat should 
 have a fitted mast to sail of whatever rig may be preferred. 
 
 Compass, ic. 2. A compass, a means of striking a light, three blue lights, and a 
 breaker of water should be kept ready for emergencies. 
 
 3. All the boats should be kept in good order, clear and ready for 
 immediate use. 
 
 Boat's crew. 4. A crcw should be assigned to each boat, to be under the charge 
 of an officer or steady person, who should be held responsible for 
 everything being kept at hand and ready for use. The crew of the 
 life- boats should be picked men. When opportunities occur it 
 would be very advisable to exercise the men in lowering the boats 
 at sea. 
 
 Boat signals. 5. In the event of lowering a boat to pick up a man, it will 
 generally happen that the man will be more easily seen from the 
 ship than from the boat. In such a case the foUoAving signals from 
 page 311 of the Commercial Code may be useful. 
 
 (a) Sect. 328.
 
 5. PEOVISIONS AS TO MISCONDUCT, &C. 
 
 ^r 
 
 
 
 M jj W .2 
 
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 C-i 
 
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 171 
 Chao. 8.
 
 172 CONVEYANCE OF PASSENGERS IN SHIPS. 
 
 Part III. 6. Should a boat be sent away at niglit, two lights (a single light 
 may be mistaken for a star) should immediately be hoisted by the 
 ship to show her position, with guns, blue lights, or flashes as 
 necessary. 
 
 2. To PREVENT Fire. 
 
 Cargo to be 7, "^q passenger ship should put to sea until all her cargo is 
 
 stowed before P^'op^rly stowed away, and the decks cleared of any loose straw or 
 sailing. hay, or other inflammable material used for packing or other 
 
 purposes. 
 Passengers to 8. The passcugcrs should be called on to deliver up whatever 
 give up inflam- lucifer matches, gunpowder, or other inflammable articles they may 
 mj. e ai ic es. j-^g^^g about them, and should be warned, not only of the danger to 
 
 the ship and passengers, but that they will be subject to punishment, 
 
 under Her Majesty's Order in Council, for retaining such things in 
 
 their possession. 
 Naked lights 9. ^N'q naked lights should on any account be used in the hold or 
 and smoking to g^Qj,g rooms, nor in the between decks, except under trustworthv 
 
 be prolumted. . ,' iii iiVi i-i"! 
 
 supermtendence ; nor should any person be allowed to read m bed 
 with a naked light. Smoking between decks should also be strictly 
 prohibited. 
 Spirits not to j^Q. Spirits should never be opened in the hold, but should be 
 
 be broaclied i-.-iiirxi 
 
 in the liold. hoisted ou deck tor the purpose. 
 
 Fire-engine. 11. It is recommended that the fire engines should be placed 
 
 under the special charge of one of the principal officers and the 
 
 carpenter, who should be responsible that, with the buckets, they are 
 
 kept in a state fit for immediate use. The engine should be worked 
 
 once or twice a week, to keep it in proper order. 
 
 Sliip's com- 13. As goon as possible after leaving port, the ofiicers and crew 
 
 \Tvid ^Unt should bc divided into parties and assigned to stations, in case of fire, 
 
 gangs and in the samc manner as for the boats ; possibly the same distribution 
 
 assigned sta- may answer for both purposes. 
 
 tions. 
 
 3. On the Occurrence or Fire. 
 
 Primary points 13. Should a fire break out, the first steps, Avith a view to arrest 
 *H >"Tf ^^ *■*' its progress as much as possible, must be so to place the ship as to 
 an alarm of keep the fire to leeward, and to cut ofi" the supply of air by closing 
 tire. the ports, scuttles, hatches, &c., and by smothering the fire with wet 
 
 blankets, sails, &c. 
 Duties of 14. The parties into which the ship's company has been divided 
 
 gangs. should immediately on the ringing of the fire -bell, fall into their 
 
 respective places. To one party should be assigned the working of 
 the fire annihilators and engines; to another the closing of the ports, 
 &c., and the preparation of wet cloths for suffocating the fire ; to a 
 third the preparations for lowering the boats and provisioning them. 
 Each of these duties will require prompt and clear decision, and each 
 should, therefore, be intrusted to an intelligent and responsible 
 person ; and as it might be a great assistance to an officer, when the 
 emergency arises, to have had the opportunity of considering before
 
 5. PEO VISIONS AS TO MISCONDUCT, &C. 1^3 
 
 hand the best way of meeting it_, it would be desirable that each Chap. 8. 
 
 should from the first be informed of the duty which, in such a case, 
 
 would be assigned to him. 
 
 15. The male passengers should be required to fall into and assist Malepassen- 
 the several parties as the master might direct. This would not only S^^^- 
 
 be a material aid, but would help to keep their minds engaged, and 
 to promote the discipline on which the safety of all must to a great 
 extent depend. 
 
 16. The females, with children, and sick, should remain under the Females and 
 immediate charge of the surgeon, who should endeavour to keep ^^"l^"'*^"- 
 them from being a hindrance to the working parties, and prepare 
 
 them for immediately leaving the ship, should that step ultimately 
 become necessary. They should secure what warm clothing they 
 could. 
 
 17. No one should be permitted to enter the boats, except those in ^"^o one to enter 
 charge of them ; nor should any boat be lowered on any pretence lJOJ^(-s without 
 whatever, unless by the express orders of the captain. On a strict orders. 
 observance of this rule the safety of the people in the last extremity 
 
 will depend. 
 
 18. If the boats should be insufficient to hold all the people, the Raft, 
 master will, of course, take Avhatever measures may be in his power 
 
 to construct a raft. A raft may be made of spare spars lashed 
 together in a triangular form, and to render it more buoyant the 
 ends should be secured to empty water casks, whose heads should be 
 guarded by hammocks or beds. As a precautionary preparation 
 against such an emergency, some of the largest water casks as soon 
 as emptied should be grometted round at each end with 3-inch rope, 
 becketted, and tightly bunged, and stowed away in the long-boat 
 and daily wetted, and thus kept ready for use at a moment's notice. 
 
 19. Any attempt to get at the spirits or wine on board in Broaching 
 moments of danger should be resisted by all hands and at all spirits m ^ 
 
 , , ° " . moments ot 
 
 hazards. danger to be 
 
 forciblj 
 resisted.
 
 Part IV. 
 
 PART THE FOURTH. 
 
 OF THE CAEEIAGE OF GOODS IN MEECHAXT SHIFS. 
 
 CHAPTER I. 
 
 OF THE CONTRACT OF AFFREIGHTMEXT BY CHARTER-PARTY; AND 
 
 HEREIN'^ 
 
 SbcT. 1. Of the Listi-iiment of Contract hy Charter-party, p. 175. 
 
 2. Of the usual Contents thereof. Stipulations as to Voyage, Freight, Burthen, 
 
 of Ship, .{c. IX 179. 
 
 3. Cf Stipulation as to Time for providinff and receiving Cargo, p. 182. 
 
 4. Construction of Charter-parties, p. 183. 
 
 5. Of Coi-enants in Charter-parties. Conditions precedent , p. 200. 
 
 6. Evidence of Usage of Trade, when admitted in their Interpretation, p. 210. 
 
 7. Bills of Lading for Goods shipped under Charter-party, p. 211. 
 
 [The contract by cliarter-party, of -n-hich it is here intended to 
 treat, is, as I have before observed, a contract by ^vhich an entire 
 ship, or some principal part thereof, is let to a merchant for the con- 
 veyance of goods on a dctermiued voyage to one or more places. A 
 ship may indeed be let for other purposes, as to be employed in war- 
 fare, or ' in the fishing, coasting, or other trade, nnder the entire 
 management of the hirer ; or by way of mortgage, reserving at 
 least a temporary right of management to the letter ; or one part- 
 owner may let his share to another. But contracts of this nature 
 do not form the subject of the present inquiry.] Charter-parties 
 are usually in writing, and when in writing generally require a 
 stamp [a). 
 
 (rt) Bv33&34Vict. c.97,scbed. — Charter- Section 67. '"Where any document is 
 
 partv, or any agreement or contract for the chargeable with duty as a charter-party, 
 
 charter of aiiv ship or vessel, or any memo- and not being duly stamped, is tirst exe- 
 
 raudum, letter, or ether writing, between cuted out of the U. K., any party thereto 
 
 the captain, master, or owner of any ship may, within ten days after it has been 
 
 or vessel, and auv other person, for or first received in the U. K., and before it has 
 
 relating to the freight or conveyance of been executed by any person in the U. K., 
 
 any monev, goods, or effects on board of afSx thereto an adiiesive stamp denoting 
 
 such ship'or vessel — 6rf. the duty chargeable thereon, and at the 
 
 Bv section 66, "the duty upon an instru- same time cancel such adhesive stamp, and 
 
 nient chargeable with duty as a charter- the insti-ument with an adhesive stamp 
 
 partv mav" be denoted by an adhesive thereon so affixed and cancelled shall be 
 
 stamp, which is to be cancelled by the deemed duly stamped."' 
 
 person by whom the instrument is last Section 68. "An executed instrument, 
 
 executed, "or bv whose execution it is com- chargeable with duty as a charter-party, 
 
 pleted as a binding contract."' and not being duly stampetl, may be
 
 1. INSTEUMEXT OF CONTEACT BY CHARTER-PARTY. 
 
 175 
 
 [The term charter-party is generally understood to he a corruption Chap. 1. 
 
 of the Latin words charta-jjai'tita {b) ; the two parts of this and 
 
 other instruments being usually written in former times on one piece 
 of parchment, which was afterwards divided by a straight line cut 
 through some word or figure, so that one part should fit and tally 
 with the other, as evidence of their original agreement and corres- 
 pondence, and to prevent the fraudulent substitution of a fictitious 
 instrument for the real deed of the parties. With the same design 
 indentation was afterwards introduced, and deeds of more than one 
 part thereby acquired among English lawyers the name of indenture, 
 This practice of division, however, has long been disused, and that of 
 indentation has become a mere form. 
 
 I propose, in the present chapter, to consider the modes in which 
 this contract may be made, and to mention the usual stipulations 
 contained in a charter-party, and some particular covenants, that 
 have furnished occasion for the decision of a court of justice ; reserv- 
 ing the consideration of the general duties that arise, as well out of 
 the contract for conveyance in a general ship as of this species of 
 contract, for distinct chapters hereafter. 
 
 1. Of the Instniment of Contract by Charter -'party. 
 
 This instrument, when tlie ship is let at the place of the owners' 
 residence, is generally executed by them, or some of them (and 
 frequently by the master also), and by the merchant or his 
 agent (f).] 
 
 stamped with an impressed stamp upon the 
 following terms ; that is to say, 
 
 (1.) Within seven days after the first 
 execution thereof, on payment of 
 the duty and a penalty of four 
 shillings and sixpence; 
 (2.) After seven days, but within one 
 month after the first execution 
 thereof, on payment of the duty 
 and a penalty of 10/. ; 
 and shall not in any other case be stamped 
 with an impressed stamp." 
 
 Section 24 (1.) An instrument, the duty 
 upon which is required, or permitted by 
 law to be denoted by an adhesive stamp, is 
 not to be deemed duly stamped with an 
 adhesive stamp unless the person required 
 by law to cancel such adhesive stamp 
 cancels the same by writing on or across 
 the stamp his name or initials, or the name 
 or initials of his firm, together with the 
 ti'ue date of his so writing, so that the 
 stamp may be effectually cancelled, and 
 rendei-ed incapable of being used for any 
 other instrument, or unless it is otherwise 
 proved that the stamp appearing on the 
 instrument was aflaxed thereto at the proper 
 time. 
 
 (2.) Every person who, being required 
 by law to cancel an adhesive stamp, wil- 
 fully neglects or refuses duly and effectually 
 to do so in manner aforesaid shall forfeit the 
 sura of lOZ. 
 
 Where a charter-party which had been 
 left within the proper time at a district 
 stamp-office, and with the proper duty and 
 postage, that it might be sent up to London 
 to be stamped at the proper office, was mis- 
 laid, and it could not be again found, 
 secondary evidence of its contenLs was 
 admitted, upon proof that in the usual 
 course of business it would have been sent 
 up from the district office to the office in 
 London. Closmadeuc v. Carrel, 18 C. B, 
 36; 25 L. J. C. P. 216; see Stowe v. 
 Quenier, L. R. 5 Ex. 155. 
 
 (6) [Hargrave's note on the 1st Inst. 229 
 Pothier, Traite de Charte-partie, num. 1, 
 gives the same etymology of this word 
 from Boerius, but with a different expla- 
 nation.] 
 
 (c) When charter-parties are not under 
 seal, the ordinary rules as to contracts 
 entered into by agents apply to them. 
 See Hisgins v. Senior, 8 M. & W. 834;
 
 176 COXTEACT OF AFFKEIGHTMEXT BY CHAETEK-PAEIT. 
 
 Part IV. [I liave before observed^ that the execution of a charter-party] 
 
 under seal [by the master, although said to be done on behalf of the 
 owners, does not furnish a direct action, grounded upon the instru- 
 ment itself, against them. This depends upon a technical rule o£ the 
 law of England (a), applicable as well to this as to other cases, and 
 not affected by the mercantile practice of executing deeds for and in 
 the name o£ absent persons ; the rule of the law of England being, 
 that the force and effect which that law gives to a deed under seal 
 cannot exist unless the deed be executed by the party himself, or by 
 another for him, in his presence, and with his direction ; or in his 
 absence, by an agent authorized to do so by another deed ; and in 
 every such case the deed must be made and executed in the name of 
 the principal {b) . The agent, indeed, either of the owner or merchant 
 may, and sometimes does, execute a charter-party and covenant in 
 his own name for performance by his principal, so as to bind himself 
 to answer for his principal's default, by force of the deed.] And before 
 the Judicature Acts an action to recover freight or demurrage, &c., 
 claimed in pursuance of a charter-party by deed, was brought on the 
 deed itself (c). Before such Acts, if the owner executed a deed to the 
 merchant, containing the usual covenant for a right delivery of the 
 cargo, he could not be sued by the merchant for not delivering it, in 
 an action upou the case, grounded on the bill of lading signed by the 
 master {d). But, before such Acts, where a charter-party under seal 
 was made by the master in that character, with merchants who did 
 not know that he was also a part-owner in the ship, as, in fact, he 
 was ; it was held, that they might sue him and the other owners in 
 an action upou the case, for a breach of such general duties as were 
 not inconsistent with the stipulations of the charter-party, such as 
 the not providing necessaries for the voyage, and employing a negli- 
 gent and unskilful master (e) . Before the Judicature Acts, the pur- 
 chaser of a ship previously chartered could not sue for the freight 
 earned under the charter-party in his own name (/). 
 
 The terms of a charter-party under seal may be explained by usage, 
 but cannot be altered, nor can any terms be introduced so as to vary 
 
 Eumhle v. Hunter, 12 Q. B. 310; Schmah v. (e) Atfu v. Parish, 1 B. & P. Xew Rep. 
 
 Avert/, 20 L. J. Q. B. 229; JenTcinson v. ]04; Schack v. Anthony, 1 M. <fc S. 573; 
 
 Jlittchhison, 13 Q. B. 744; Carr v. Jack- l[;ores v. Hopper, 2 B. kF.'Sew Rep. 411. 
 
 son, 7 Excli. 382; Smith v. McGv.ire, 3 It does not ai)pear by the report whether 
 
 H. «fc X. 555 ; 27 L. J. Ex. 465. the charter-party was" by d-ed or simple 
 
 (rt) \_Rarrison v. Jaclson, 7 Temi. Rep. contract. See per Batley, J., in Tilson v. 
 
 207, and Sorslei/ v. Sush (the case of a The Warmck Gas Light Co., 4 B. »t C. 
 
 charter-party), there cited.] It must be 968. 
 
 borne in mind that the part within brackets (rf) "Hunter v. Prinsep, 10 East. 378. 
 
 is taken from the 5th Ed. of this work, (e) Leslie v. Wilson, 3 B. & B. 171, and 
 
 which was published in 1827. Since the 6 B. Mo. 415. 
 
 Judicatiire Acts this technical rule of law (/) Splidt v. Bowles, 10 East. 279. The 
 
 would not prevail. charter-party appeai-s to have been under 
 
 (b) [If C. D., by a proper deed, authorize seal. Morrison v. Parsons, 2 Taunt. 407. 
 
 A. B. to execute a bond or other deed for The charter-party was not under seal ; but 
 
 him, A. B. may do this either by writing since the J udlcature Acts, in general, the 
 
 " C. D. by A. B. his attorney," or by ^vrit- purchaser, when entitled to the freight, may 
 
 ing " A. B. for C. D.," provided he delivers sue in his own name, 
 the instrument as the deed of C. D. JFilks v. 
 Back, 2 East. 142.]
 
 1. THE CHARTER-PARTY. 177 
 
 the nature of the original contract {g). Where, by a charter-party Chap. 1. 
 
 under seal, a ship was let at a certain rate per month, to commence 
 
 and be computed from the day of her departure from Gravesend, and 
 
 was to take in her cargo at a port in the Channel, and sail therewith 
 
 on the intended voyage, a subsequent verbal agreement for loading 
 
 the ship in the Thames, and commencing the payment from the day 
 
 of her clearing out at the Custom-house, was held to be binding, and 
 
 the merchant Avas compelled to pay for the interval between clearing 
 
 out and sailing from Gravesend [h). 
 
 There were, before the Judicature Acts, other technical rules of 
 law applicable to charter-parties and other contracts under seal which 
 it is thought unnecessary here to notice, especially as the instrument 
 of contract by charter-party is now more commonly an agreement 
 not under seal. Such a charter-party called a memorandum of 
 charter is sometimes executed by persons describing themselves as 
 agents of a named principal, in which case the liability of such 
 persons is a question of intention and construction, to be determined 
 upon the Avording of the whole contract in the light thrown upon it 
 by the surrounding circumstances (?'). The fact that the alleged 
 principal is beyond the reach of the laws of the country, though not 
 as a matter of law conclusive of the professed agent^s liability, fur- 
 nishes an argument more or less prevailing acccording to the circum- 
 stances of the case {k). The proper style of signature for an agent 
 intending to provide against his own liability is to contract in the 
 
 name of his principal and sign " per procuration of ;''Mie will 
 
 not be protected by a description of himself in the body of the 
 instrument as an agent for his principal, if he sign in his own 
 name (/). Persons who had signed "by authority of and as agents 
 of M.A.H.S. of Memel,^' (w) and "on behalf of N.^' (w), were held 
 personally liable. The form " A. B., agent of C. D.,^'' has been 
 considered to be mere description, and not to exempt A. B. from 
 liability as the contracting party (o) . The defendants in one case 
 had chartered a ship as agents to a principal named in the charter- 
 party, and signed as his agents — but the words " merchants and 
 charterers,^^ wei^e left unaltered in the printed form of the charter- 
 
 {g) Gihhon v. Young, 2 B. Moore, 224 Nicholson, 21 L. J. Q. B. 405. Tanner v. 
 
 Thompson v. £roion, 7 Taunt. 656. Christian, 4 E. & B. 591 j 24 L. J. Q. B. 
 
 (h) While V. Parkin, 12 East. 578. 91. See Wake v. Harrison, 6 H. & N. 768 ; 
 
 {i) Lennard v. Robinson, 4 E. & B. 24 j 1 H. & C. 202 ; 20 L. J. Ex. 273; 31 L. J. 
 
 24 L. J. Q. B. 275. Leiois v. Nicholson, 18 Ex. 43. 
 
 Q. B.503; 21 L. .1. Q. B. 311. Downmanv. (l) Parker v. Winlow, 7 E. & B. 942; 
 
 Williams, 7 Q. B. 103. Doivnman v. Jones, 27 L. J. Q. B, 49 ; but see Green v. KopJce, 
 
 4 Q. B, 235. As to when an agent signing 18 C. B. 549; Mahonij v. Kekule, 14 C. B. 
 a contract is personally liable upon it, see 390; Deslandes v. Gregory, ^0 L. J. Q. B. 
 notes to Thomson v. Davenport, 2 Smith's 36. 
 
 Leading Cases; Hough v. Manzanos, 48 (»j) Lennard w Eohinson, 5\\]iVA. Leiois 
 
 L. J. Ex. 398. V. Nicholson, supra. 
 
 {k) 2 Kent's Com., Part. V., lect. 41, note {») Tanner v. Christian, 4 E. & B. 591 ; 
 
 (/;). Wilson V. Be Zulueta, 14 Q. B. 405; 24 L. J. Q. B. 91. 
 
 19 L. J. Q. B. 49. Lennard v. Fleming, (o) Parker v. Winloto, supra. 
 
 5 E. & B. 125 ; 24 L. J. Q. B. 275. Lewis v.
 
 178 
 
 CONTEACT OF AFFREIGHTMENT BY CHARTEE -PARTY — 
 
 Part IV. 
 
 Parol evidence 
 as to part J' 
 signing being 
 agent. 
 
 Cesser clause 
 SIS to liability. 
 
 party, and it was contended that the plural words must be applic- 
 able" to tliem and not to the principal ; but the court held that the 
 manifest intention was that the defendants should not be personally- 
 liable {a) . 
 
 It may be shown by parol evidence that either party to a charter- 
 party not under seal, contracted as agent for the purpose of enabling 
 the undisclosed principal to sue in an action for the non-performance 
 of same, or for the purpose of charging him for a breach of it [b) ; 
 but such evidence cannot be given for the purpose of discharging 
 either party from the liability which, upon the face of the charter- 
 party, he has incurred, as that would be admitting parol evidence for 
 the purpose of contradicting a Avritten document (<?). Where a 
 person contracts in the body of a charter-party and signs " as agent,'' 
 his principal being undisclosed, evidence is admissible to show a 
 custom that he shall be personally liable if he does not disclose his 
 principaPs name within a reasonable time (d). If a charter-party 
 be concluded in the name of another styling himself as owner, 
 though in truth only an agent, the real owner cannot sue upon it, 
 evidence not being admissible to contradict the statement in the 
 contract (e) . 
 
 A person who professes to enter into a contract for another, having 
 no authority to do so, may be made liable on an implied promise 
 that he had authority to sign as agent (/). A principal may be held 
 liable on a contract entered into without his authority by an agent, if 
 he has held him forth, or allowed him to hold himself forth publicly 
 in previous transactions as agent, in a way to have induced a reason- 
 able inference in the mind of the person seeking to enforce the con- 
 tract, that he had authority to bind his principal {g) . 
 
 Clauses expressly protecting persons signing charter-parties from 
 ^^ all liability after shipment of the cargo, the owners and masters 
 agreeing to rest solely on their lien on the cargo for freight and 
 demurrage'' {h), and clauses providing that the liability of persons 
 " in every respect, and as to all matters and things as well before as 
 after the shipping of the cargo," should " cease as soon as they had 
 shipped the cargo" (i), have been held effectual for their object, and 
 to exempt the freighters from liability for demurrage and for not 
 shipping in regular turn {k) . 
 
 (a) Deslandes v. Gregort/, 29 L. J. Q. B. 
 98; 2E. &E. 602. 
 
 {I) Paterson y. Gandaseqid, \o'S.A?,t.G2. 
 Thomson v. Davenport, 9 B. & C. 78; 2 
 Sniitli's Leading Cases. 
 
 (c) Siggins v. Senior, 8 M. & W. 834. 
 
 (rf) Hutchinson v. Tathain, 42 L. J. C. P. 
 260. 
 
 (e) Humlle v. minter, 12 Q. B. 310. 
 
 (/) Collen V. Wright, 7 E. & B. 301. 
 Jenkinson v. Hutchinson, 13 Q. B. 744. 
 Jones V. Downman, 4 Q. B. 235, in notis. 
 Humble v. Hunter, 12 Q. B.310. Schmalzv. 
 Avert/, 20 L. J. Q. B. 229. Carr v. Jack- 
 son, 7 Ex. 382. 
 
 (g) Smith v. McGuire, 3 H. & N. 560. 
 
 {h) Sederson v. Lotinga, 28 L. J. 267. 
 
 {i) Oglesby v. Yglesias, 3 B. & E. 930; 
 27 L. J. Q. B. 356. 
 
 {k) Milvain v. Perez, 30 L. J. Q. B. 91; 
 3 E. & E. 495. See Sanguinetti v. Pacific 
 Steam ^"a ligation Co., 46 L. J. Q. B. 105, 
 L. R. 2 Q. B. D. 74, wbere it was held 
 that a similar clause protected the char- 
 terer, though he was also consignee, and 
 the action was brought for the detention 
 of the ship whilst loading. Lester v. 
 T'an Haansbergen, 45 L. .1. Q. B. 495 ; 
 French v. Gerber, 45 L. J. Q. B. 880; 
 46 L. J. Q. B. 320; L. R. 1 C. P. D. 737.
 
 2. CONTENTS OP SAME. 179 
 
 As respects the performance of the stipulations of a charter-party, chap 1 
 we may here observe that it is not a mere contract for the conveyance — - 
 of goods from one place to another, but for the service of a specific ,4^ ^° compel- 
 ship, often after careful consideration of the purposes for which peSormanc'e 
 it is adapted, and of the cargo and voyage for which it is required, andiujunc- 
 The shipowner's contract, relating as it does to the ship's condition *^°"- 
 and equipment at the commencement and during the course of the 
 voyage, the appointment of a competent master, the engagement of 
 an adequate crew, the supply of the necessary stores, and the course 
 and prosecution of the voyage, is such as to render the interference 
 of a court to enforce a specific performance of it, with any practically 
 beneficial effect, impossible. The charterer, is therefore, from the 
 necessity of the case, left to his action to recover damages for the 
 breach of the shipowner's contract in any of these particulars. But 
 a court will interfere to restrain by injunction the employment of a 
 ship by its owner in a manner inconsistent Avith the contract (/). 
 
 3. Of the usual Contents thereof. Stipulations as to Voyage, Freight, 
 Burthen of the Ship, &;c. 
 
 [By this contract a ship is let for a voyage to one or more places ; 
 the freight is expressed to be a sum of money for the entire ship, or 
 an entire part of the ship, or for each ton or other portion of its 
 capacity ; and this sum is again either a gross sum for the whole 
 voyage or voyages, or a particular sum for every month or week of 
 the ship's employment. Sometimes also the freight is expressed to 
 be a certain sum for every ton, cask, or bale of goods put on board, 
 in which case the merchant usually covenants not to put on board 
 less than a specified number of tons, casks, or bales ; and where the 
 payment is to be by the ton of goods, it is usual and proper to add, 
 " and so in proportion for a less quantity than a ton," as it was 
 formerly decided, in a case where these words were omitted, that the 
 owner could recover nothing for a hogshead {m) . These variations in 
 the mode of paying the freight have given rise to some questions and 
 decisions on that article, which will be more properly noticed in the 
 chapter on freight. 
 
 The merchant who has so hired a ship may lade it either with his 
 own goods, or, if he has not sufficient, may take in goods of other 
 persons, or he may wholly underlet the ship to another. By the 
 French ordinance, underletting at an advanced price is prohibited (n) 
 — a wise regulation, though not adopted by our law, and perhaps not] 
 
 where the cesser clause was held to Chrisfqffersen v. Sansen, 41 L. J. Q. B. 
 
 apply whether a lien was given up or not. 217 ; L. R. 7 Q. B. 509. 
 
 KisTc V. Com, 44 L. J. Q. B. 205; L. R. (?) 4 De G. and J. 276; 28 L. J. Ch. 
 
 10 Q. B. 503 ; Lockart v. Falk, 44 L. J. 498. 
 
 Ex. 105; L. R. 10 Ex. 132; Francesco v. (w) Sea v. Burnis, 2 Lev. 124. 
 
 Massey, 42 L. J. Ex. 75 ; L. R. 8 Ex. 101 ; («) Liv. 3, tit. 3, fret. art. 27. 
 
 N 3
 
 180 CONTKACT OF AFFEEIGHTMENT BY CHAKTEE-PARTY — 
 
 Part IV. [rendered necessary by the practice of our merchants («) . If it be 
 
 necessary, a clause may easily be introduced into all charter-parties 
 
 to prevent the practice. 
 
 The charter-party usually expresses the burthen of the ship {b), 
 and by the French ordinance it is required to do so (c) . A mistake 
 in the' amount of the burthen may in some cases be prejudicial to one 
 party or the other. The French ordinance provides that the master 
 who'declares his ship to be of a burthen exceeding the truth shall 
 answer the merchant in damages, but that an error shall not be 
 deemed to exist unless it exceeds a fortieth part {d). According to 
 Molloy, if a ship be freighted by the ton, and found of less burthen 
 than expressed, the payment shall be only for the real burthen [e). 
 And if a ship be freighted for tioo hundred tons, or thereabouts, the 
 addition of thereabouts , says the same author, is commonly reduced 
 to be five tons, more or less. Where a ship was described in a 
 charter-party as of the burthen of 261 tons or thereabouts, and the 
 owner covenanted to receive at a foreign port a full and complete 
 cargo, and the merchant covenanted to load such full and complete 
 cargo, the burthen of the ship thus expressed was held not to 
 conclude the parties ; and the merchant was held answerable upon 
 this covenant for not having furnished a full cargo, although in fact 
 he furnished as many as 261 tons, and it appeared that the ship was 
 capable of carrying 400 tons of goods of the description mentioned in 
 the charter-party, the representation of the bui'then not appearing to 
 have been fraudulently made (/) .] 
 
 Where a vessel was described in the charter-party as ^'of the 
 measurement of 180 to 200 tons, or thereabouts,-" it was held that 
 these words did not amount to a warranty, exonerating the defendant 
 from loading the vessel because it turned out to be of 257 tons 
 burthen, though if the size of the ship, had been to an extravagant 
 degree larger than that contracted for, there might have been evi- 
 dence of fraud on the part of the plaintiffs [g) . 
 
 [The contents of this instrument are varied according to the nature 
 of the intended voyage, or the will of the parties — but the usual 
 stipulations on the part of tlie owner or master are, that the ship 
 shall be tight and staunch, furnished with all necessaries (A) for the] 
 
 (a) But see Michenson v. Beghie, 6 Bing. and Behn v. Burness, post, p. 208, per 
 
 190. WiLLES, J. 
 
 (J) See on this head Straccha de Xa- {g) Windle v. Barker, 25 L. J. Q. B. 
 
 \'ibus, pars 3 num. 4, ad. 13 inclusive. 349, 6 E. & R. 675 ; CooJcUng v. Massey, 
 
 (c) Liv. 3, tit. 1 ; Charte-partie, art. 3. L. E. 8 C. P. 395. See post, section 5. By 
 
 \d) Liv. 3, tit. 3, fret. arts. 4 and 5. the 17 & 18 Vict. c. 104, the registered 
 
 (c) Molloy, book 2, ch. 4, s. 8. tonnage of any ship, ascertained as pro- 
 
 (/■) lB:jtniery.Fri/,2 B. & A.421.] See vided by that Act, shall be deemed to be 
 
 GioiUim v. Daniel, 2 C. M. & R. 61 ; the tonnage of such ship, and be repeated 
 
 Thomas v. Clarke, 2 Stark. 452 ; 3Iorris v. in every subsequent registry unless any 
 
 Levison, 45 L. J. C. P. Add, post, p. 191; alteration is made in its form or capacity, 
 
 Leeminv, Snailh, 16 Q. B. 275; Perst v. or the tonnage has been erroneously com- 
 
 Bowie, 34 L. J. Q. B. 127, post. Chap. 9 puted. Sect. 26. 
 
 of this Part, sect. 2. See James v. East {h) [If a bill of health be essential to the 
 
 India Co., as to the general rule in cases of performance of the voyage, it is considered 
 
 misdescription. See also Blight v. Booth, as a necessarj' document. Levi/y. Costerton, 
 
 1 Bing. N. C. 370, per Tixdal, C. J.; 1 Stark, 212.]
 
 2. CONTENTS OP SAME. 181 
 
 [intended voyage^ ready by a day appointed to receive tlie eargo, and Chap. 1. 
 
 "wait a certain number of days to take it on board ; that, after lading, 
 
 slie shall sail ii^ith the first fair Avind and opportunity to the destined 
 port (the dangers of the seas excepted), and there deliver the goods to 
 the merchant or his assigns, in the same condition they were received 
 on board ; and further, that during the course of the voyage the ship 
 shall be kept tight and staunch, and furnished with sufficient men 
 and other necessaries, to the best of the oivner's endeavours. 
 
 The owner may, indeed, and sometimes does, by special clauses, 
 make himself still further liable, and render himself answerable in 
 the case of accidents or misfortunes, which otherwise would furnish 
 him with an excuse. As in the case of a charter-j)arty made with 
 the Commissioners of the Transport Office, by Avliich the owner 
 covenanted that the ship should be manned with a specific number of 
 men in proportion to her bulk, and that the whole number should be 
 constantly on board, and which contained a proviso that the com- 
 missiouers should be at liberty to mulct and make such abatement 
 out of the ship's pay, which was a fixed sum for twelve months, as 
 they should think reasonable, " upon the loss of time, breach of 
 orders, or neglect of duty by the master, or from the ship's inability 
 to execute or proceed on the service on which she might be employed, 
 being made appear" — it was held that the commissioners had a right 
 to make an abatement, a service to which the ship was ordered at 
 Quebec having been delayed for a considerable time for Avant of 
 mariners, although the want was occasioned by the death of some of 
 the original crew, Avho had died of the small-pox in the course of the 
 voyage thither, and the desertion of others at that place from fear of 
 the distemper, and it was impossible to procure a fresh supply of 
 hands during the time {i). 
 
 On the other hand, the merchant usually covenants to load and 
 unload the ship within a limited number of days after she shall be 
 ready to receive the cargo, and after arrival at the destined port, and 
 to pay the freight in the manner appointed. Frequently also it is 
 stipulated that the ship shall, if required, wait a further time to load 
 and unload, or to sail with convoy, for which the merchant covenants 
 to pay a daily sum. This delay, and the payment to be made for it, 
 are both called demurrage {k) . Sometimes, also, particular clauses 
 are introduced in favour of the owners, to take away their responsi- 
 bility for embezzlement of the master, or other matters, for which 
 they Avould otherwise be answerable.] A declaration in a charter- Naming safe 
 party stating that it Avas agreed thereby that the ship should sail in po^"*^- 
 ballast to a safe and convenient port near to Cape ToAvn, and there 
 load a full cargo, and that the plaintiff agreed to load the vessel Avith 
 the said cargo, and to pay freight for the same, and that although 
 the plaintiff was ready and Avilling to appoint and put on board a 
 proper person as supercargo, Avho would have imparted to the master 
 a safe and convenient port near Cape ToAvn for receiving on board 
 
 (i) Beatsgn v. Shank, 3 East, 233. (Jc) As to demurrage, szQpost, Cliaii. 3 of 
 
 this Part,
 
 182 CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY — 
 
 Part IV. the cargo^ the defendant Avoukl not permit the ship to proceed in 
 ballast on the voyage, "was held bad on general demurrer, there being 
 no averment that the plaintiff gave notice to the defendant of a safe 
 and convenient port, or anything equivalent in law to such notice, 
 before the vessel sailed (a) . 
 
 A ship was chartered to proceed with a cargo from England to a 
 safe port in Chili. When she arrived at Valparaiso, where orders to 
 a port of discharge were to be received, the agents of the charterers 
 directed the captain to proceed to a port which was naturally a 
 safe port, but which was then closed by the Chilian Government, 
 and into whicli a ship entering without a permit would be liable to 
 confiscation. Many days elapsed before a permit could be obtained. 
 The charterers and the shipowners were ignorant, on entering into 
 the charter-party, that any of the ports of Chili were closed, and the 
 charterers had throughout intended the j)ort in question to be the port 
 of discharge, but the agents who gave the directions to the captain 
 to proceed there knew at the time that the port was closed, and the 
 charterers, upon these facts were held not to have named a safe 
 port Avithin the meaning of the charter-party {b). 
 Charter-party As to a charter-party entered into for an illegal purpose or voyage 
 for an illegal being void, scc Waiigfi V. Morris, 42 L. J. Q. B. 57; the Teutonia, 
 
 purpose. ^j j^ J ^^ 5^ . ^ ^ ^ p ^ ^pp -^^2. 
 
 3. Of Stipulations as to Time for pi'ovidinff and receiving Cargo (c). 
 
 [In all maritime transactions expedition is of the utmost import- 
 ance, for even by a short delay the season or object of a voyage may 
 be lost {d) ; and, therefore, if either party is not ready hy the time 
 appointed for the loading of the ship, the other may seek another ship 
 or cargo, and bring an action to recover the damages he has sustained. 
 Nay, according to Molloy, even if part of the lading be put on board, 
 and the merchant cannot furnish the residue, the owner may annul 
 the contract, and lade his ship with other goods {e) ; but the same 
 author adds, that it is by no means prudent to do so without good 
 reason and deliberation. And, notwithstanding the opinion of this 
 author, who here alludes to a contract for an entire lading, I appre- 
 hend the owner has not strictly a right to annul the contract, or take 
 other goods without the merchant's consent. He certainly ought 
 not so to act if the merchant is a responsible person^ for he will have] 
 
 (a) Hoe V. Hackett, 12 M. & W. 724, Ledr/et v. WiUiams, 4 Hare. 456, Where, 
 
 and see WooUet/ v. ReddoUen, 5 JI. & G. by the terms of a charter-party, a ship was 
 
 816 ; Brown v. Johnson, Car. & M. 440, to proceed to a certain port, and there to 
 
 {h) Ogden v. Graham, 1 B. & S. 773 ; load a full cargo for the agents of the 
 
 81 L. J. Q. B. 26 J Duncan v. Roster, 41 freighters, who had no interest in the out* 
 
 L. J, Ad. 57. ward cargo; it was held, that their agents 
 
 (c) See further as to this, ^ost, Chap. 3 were entitled to notice from the captain 
 
 of this Part. that the vessel was ready to receive her 
 
 (rf) Glaholme v. Hayes, post, p. 205. homeward cargo, and that no such notice 
 
 (e) Molloy, book 2, c. 4, p. 73 ; and see
 
 4. CONSTRUCTION OF. 183 
 
 [a right to sue tlie merchant upon his covenant for a deficiency in the Chap. 1. 
 
 cargo; and therefore it seems reasonable that the merchant^ upon 
 
 whom the loss arising from the deficiency will fall, should have the 
 right to take the loss upon himself, and order the ship to sail. And 
 accordingly the French ordinance directs^ that if the ship be freighted 
 by the great, and the merchant do not furnish a full lading, yet the 
 master shall not^ without his consent^ take in other goods to complete 
 the lading, nor without accounting to him for the freight of such 
 goods (/); which direction is consonant to general principles of law; 
 for the hirer has a right to use the thing hired in any manner most 
 agreeable to himself, not differing from the purpose for which it was 
 let to him. And in this particular case, the sale of the merchant's 
 goods may be prejudiced by taking other commodities to the market 
 for which he has destined them. But on the other hand, if the mer- 
 chant is known, or reasonably suspected, to have become insolvent^ 
 the owner will incur no risk of damages by taking other goods to 
 secure his freight ; and he should not trust to a supposed lien upon 
 the goods actually laden as a security for the loss he may sustain from 
 the want of an entire cargo.] 
 
 "Where, in an action of assumpsit, it appeared that, by agreement 
 of charter, lay days Avere to be reckoned from the 16th of December 
 for loading the ship at Cardiff*, and proof was given that Pembroke 
 was afterwards agreed to be substituted for Cardiff as the port of 
 loading — it was held, that the lay days must be reckoned from 
 the 16th of December at Pembroke, as if the vessel had been at 
 Cardiff [g) . 
 
 Where, by a charter-party under act dated the 9tli day of October, 
 but not delivered till the 28th of October, one party covenanted to 
 pay a moiety of the value of all the corn " which then was, and 
 thereafter should be, laden on board the ship,^' — it was held, that he 
 was not liable to pay for any corn that was not really on board the 
 ship on or after the 28th of October {h) . 
 
 4. Construction of Charter-parties. 
 
 [The general rule which our courts of law have adopted in the Rale as to 
 construction of this as well as other mercantile instruments is, that construction. 
 the construction should be liberal, agreeable to the real intention of 
 the parties (i) , and conformable to the usage of trade in general^ and] 
 
 having been given, the freighters were not ((") See Wiggins v. Johnston, 14. M. & W. 
 
 liable for not providing it. Fairhridge v. 609 ; Femoick v. £ogd, 15 M. & W. 632. 
 
 Face, 1 Carr. & K. 317 ; Stanton v. Austin, Siadhard v. Zee, 3 B. & S. 364. In 
 
 41 L. J. C. P. 218. See post. Chap. 3 of Talente v. Gibbs, 6 C. B. (x.s.) 286; 28 
 
 this Part. L. J. C. P. 230, in which the words, " at 
 
 (/) [Liv. 3, tit. 3, fret. art. 2; Pothier, any period of the voyage," in a clause pro- 
 
 Charte-partie, num. 20.] vidhig for the event of the ship's detention 
 
 (g) Jackson v. Galloioag, 5 Bing. N. C. was held to exclude the port of departure ; 
 
 71 ; 6 Scott, 786. and see Crow v. Falck, 8 Q. B. 467 ; Janice 
 
 (h) Osheg v. Hickt, Cro. Jac. 263. v. Mcolojpulo, 11 Ex. 129. A charter-
 
 184 
 Part IV. 
 
 Covenant to 
 procure a 
 license. 
 
 As to ship 
 being ready 
 to load and 
 unload. 
 
 CONTEACT OF AFFEEICIHTMENT BY CnAETEK-PAETY 
 
 [of the particular trade to wliicli the contract relates («). Cases 
 on tliis Lead have received a judicial determination; I mil here men- 
 tion such of them as do not more properly relate to the other divisions 
 of this Treatise, 
 
 A ship was chartered for a voyage from England to any port or 
 ports of St. Domingo, there to deliver her outward cargo, and take 
 in a return cargo for England, and the merchant covenanted to pro- 
 cure a license. He did in fact procure a license, with which the ship 
 sailed to the ports of Cape Francois and Gonaive (both of which were 
 under the dominion of Christophe, and not in the power of the enemies 
 of Great Britain), and there delivered her outward, and received a 
 retui'n cargo. She was afterwards taken by one of his Majesty ^s 
 frigates, and condemned at Jamaica, upon the supposed necessity of a 
 license for this voyage, and the insufficiency of the actual license to 
 })rotect tlie return cargo. The sentence was reversed upon appeal, 
 the owners paying the captor's costs, it being considered that no license 
 was necessary for the voyage to the ports before mentioned, although 
 a license would have been necessary for such a voyage to some other 
 port of St. Domingo. Under these circumstances it was held that 
 the merchant Avas not answerable on the covenant to procure a 
 license, because that covenant would only apply to a voyage for which 
 a license was necessary {b)'\. 
 
 The charterer of a ship (c) had covenanted to load and despatch her 
 from Tobago, so that she might sail Avith the convoy appointed to 
 depart from thence on the 1st of August. The ship arrived in Tobago 
 on the 8th of July, was ready to take in the homeward cargo on the 
 14th, and might have taken in her whole cargo within a week if it 
 had been ready. On the 22nd of July, part only of the cargo having 
 been sliipped, the convoy sailed ; and the captain, considering him- 
 self bound to consult the safety of the ship, refused to delay his own 
 departure, and sailed with it. In answer to an action by the ship- 
 owner for the freight agreed to be paid by the charter-party, the 
 merchant contended that his contract was to have a cargo ready by 
 the 1st of August, and that it would have been ready by that day. 
 But Lord Ellenborough said, " I think the captain was at liberty to 
 sail from Tobago on the 22nd, the day when the convoy passed that 
 island. The covenant must receive a reasonable construction. Had 
 
 party stipulated that a certain steamer then 
 at N., being tight, staunch, and in every 
 ■way fitted for the voyage, should proceed 
 to the usu;il place of loading at N., or as 
 near thereunto as she could safely get 
 (guaranteed for cargo in a certain mouth), 
 there load and then proceed to A. It con- 
 tained the usual exception of dangers and 
 accidents of seas, rivers, and navigation 
 during the voyage : — Held, that the voyage 
 commenced from her starting from her 
 then berth for the loading place, and that 
 the exception applied to that portion of the 
 
 voyage. Barker v. M'Andrews, 34 L. J. 
 C. P. 191. 
 
 (a) Mull y. C'a::eiiove, -ilLidit, 4:77. Sorii- 
 manii v. Tooke, 1 Campb. 377. Fuller v. 
 titainforth, 11 East. 232. Thompson v. 
 Inglis, 3 Campb. 428. Steele v. Mart, 4 
 B. & C. 272. Stijlei V. Wardle, ibid. 908. 
 Cranston v. JMarshall, 5 Ex. 395. 
 
 (i) {Johnson v. Greaves, 2 Taunt. 344. 
 See also, on the subject of license, Siffkin v. 
 Albmtt, 1 M. & S. 39.] 
 
 (c) Thompson v. Inglis, 3 Campb. 428. 
 See also Davidson v. Gw^nne, 13 East, 
 381.
 
 4. COXSTKUCTIOX OF. 185 
 
 the ship not arrived iu time to he loaded hy the 22ud, the case Avould Chap. 1. 
 
 have been different ; but as she was ready to take in goods for the 
 
 homeward voyage on the 14th of July^ the charterers were bound to 
 have supplied her with a full cargo before the time when the general 
 West India convoy passed by the station where she lay. Even if the 
 captain might have been able afterwards to have overtaken it^ he was 
 not bound to wait for the convenience of parties^ as he must thereby 
 have increased the risk of capture."" 
 
 It was agreed by charter-party^ that the defendant's ship was to 
 proceed from London to Bombay, and there discharge her cargo ; and 
 then load a cargo^ with which she was to proceed direct to London : 
 the merchant to have the privilege of sending the ship to Calcutta 
 from Bombay, upon paying for the extra time occupied. If the ship 
 returned from Bombay direct to London, the merchant was to have 
 the power of sending her to one port on the Malabar coast, to receive 
 cargo, paying for the extra time. The master having discharged the 
 outward cargo at Bombay, refused to take iu another cargo for 
 Calcutta, and for this alleged breach of contract an action was 
 brought. The defence was, that the cargo which the master was 
 required to load was a cargo for Calcutta, and not for London ; and 
 the court finding no stipulation in the charter-party that the master 
 should take on board a cargo for any place other than Loudon, and 
 nothing to authorize the employment of the vessel upon an inter- 
 mediate voyage after her arrival at Bombay, gave judgment for the 
 defendants (d). 
 
 By another charter-party {e), it was agreed that a vessel should 
 liave ninety running days, and ten days of demurrage, to commence 
 from her arrival at Whidah, in Africa, bein^ ready to unload and 
 having received pratique. The plaintiff, in his declaration, alleged 
 that, although the vessel on the 24th of August was at Whidah, 
 ready to unload, and had received pratiquCj the defendant did not, 
 within ninety days — commencing on her arrival there, and being 
 ready to unload and receive pratique — unload and load the vessel, 
 but wrongfully detained her beyond the running days and days of 
 demurrage. The defendant pleaded, that the vessel was not ready to 
 unload, and did not receive pratique for a long time after her arrival 
 at Whidah, viz., for a time equal to that of the alleged Avrongful 
 detention. 
 
 It appeared in evidence that there was no quarantine establishmeut 
 at Whidah, nor any means of formally granting pratique, but that 
 the vessel was in fact at liberty to unload on the 14tli of August. 
 
 The court held, that the allegation that the vessel had received 
 pratique was sufficiently borne out by proof that she was at Whidah, 
 ready and at liberty to unload. 
 
 The charterer of a specified ship was entitled, under the charter- 
 
 {d) CocUurn v. Wright, 8 Scott, 489 ; 819. See Anderson v. Fiteher, 2 Bos. & 
 6 a. N. C. 223. Pull. 164 
 
 (e) Ballet/ v. De la Arroyave, 7 Ad. & Ell.
 
 00 CONTRACT OF AFFEEIGHTMENT BY CHAETEE-PARTY — 
 
 Part IV. party, to ship -wet sugar, and provided a reasonable cargo of that 
 commodity, but the ship, in consequence of her pumps not being able 
 to meet the requirements of such cargo, was not reasonably fit to 
 carry it, and the defect as to the pumps could only have been reme- 
 died after such a lapse of time as would have frustrated the object of 
 the adventure : — Held (affirming the judgment of the Court of 
 Common Pleas), that the charterer was entitled to refuse to ship the 
 cargo, and to recover damages for the unfitness of the ship («) . 
 
 When a charter-party stipulates that a vessel shall proceed to a 
 port with all convenient speed, her owner does not thereby bind him- 
 self that she shall arrive within any particular time. He is not liable 
 for a breach of his contract when, having done his best, its perform- 
 ance has been delayed by dangers of the seas, and if the season for 
 shipping the goods has in such circumstances terminated on the ship's 
 arrival, evidence is not admissible for the charterer in an action 
 against him for not loading, to show that the trade had closed, for the 
 proximate cause of his default was, the fact that the intended cargo 
 could not from local causes be obtained Avheii the ship arrived, and 
 the exception in the charter-party of the dangers and accidents of the 
 seas is one of which the shipowner only can avail himself [b). So 
 where it was agreed between the shipowner and the plaintifi", that the 
 contract should be in force for six successive voyages, to be performed 
 before the end of February, 1863, it was held no answer to an action 
 for not having made six successive voyages that the ship in her third 
 voyage, by the dangers and accidents of navigation, sustained damage, 
 which the shipowner did his best, but was unable to repair, and to 
 commence his fourth voyage until the last day of February, 1863, 
 had passed (c). 
 
 Where shipowners covenanted that their ship should proceed to 
 Ichaboe, and there load " a full and complete cargoe of guano,'' it 
 was held to be no excuse for the non-performance of the contract that 
 no guano was to be found at Ichaboe {d). And where it was agreed 
 that a ship should sail from Callao and load a cargo of guano at the 
 Chincha Islands, calling on her way at Pisco *^to obtain the necessary 
 pass to load, to be given to the captain by the charterer's agents free 
 of expense within twenty-four hours of his application," it was held 
 no answer to an action against the charterers for loading an insufficient 
 cargo, there being no allegation in the plea, that in point of fact the 
 vessel was in an improper condition to load a full cargo, that by the 
 laAvs of the Republic of Peru, a ship loading guano at the Chincha 
 Islands was lialjle to seizure if it had not procured a written pass or 
 permit from the Peruvian Government, and that on inspection of the 
 vessel by its officers, a permit for more than the quantity of guano 
 which was loaded had been refused [e] . 
 
 (a) Richardson v. Stanton, 43 L. J. 25 L. J. C. P. 209. See remarks ou this 
 
 C. P. 230. Affirmed in H. L. 45 L. J. case, 44 L. J. C. P. 31. 
 
 C. P. 78. (c) Fope V. Haridge, 10 Ex. 73. 
 
 (lA Hwrst V. Ushome, 18 C; B. 155 ; {d) HiU v. Sv.gnie, 15 M. & "W, 253. 
 
 {e) Kirk v. Gibbs, 26 L. J. Ex. 209.
 
 4. CONSTRUCTION OF. 187 
 
 In au action (/) on a cbarter-party, by which the plaintiffs liad let Chap. 1. 
 to the defendant the ship Edward Lombe, for a voyage from London „ 
 to Madras and the Cape of Good Hope, and thence to Bombay and ^gut of 
 back, the plaintiffs claimed a compensation in damages from the voyage and 
 defendant, for not loading the ship with a cargo of cotton at Bombay, deviation. 
 It appeared in evidence, that instead of proceeding direct by the 
 usual course from the Cape of Good Hope, the captain made a devia- 
 tion to the Mauritius ; that the vessel arrived at Bombay six weeks 
 later than it would have done had it proceeded in the usual course, 
 and that the defendant's agents, in consequence of the deviation, 
 refused to find a cargo. The jury were directed to consider whether 
 the deviation was such as to have deprived the freighter of the benefit 
 of his contract, '' Inasmuch,'"' said Tindal, C. J., in his direction to 
 the jury, " as the freighter might sue the owner, and recover damages 
 for any ordinary deviation, he could not, for such a deviation, put au 
 end to the contract ; but if the deviation Avas so long and unreason- 
 able that, in the ordinary course of mercantile concerns, it might be 
 said to have put an end to the Avhole object the freighter had in view 
 in chartering the ship, in that case the contract might be considered 
 at an end.''' 
 
 The jury found for the defendant, and a rule for a new trial, on the 
 ground of misdirection, was discharged. 
 
 Thus, in the case of M'Andreiv v. Adams {(/), the defendant, by 
 charter-party, agreed to go in ballast from Portsmouth to St. 
 Michael's and bring back a cargo of fruit direct to London. The 
 charterer was to be allowed thirty-five running days for loading and 
 unloading, to commence on the 1st of December then next; and if 
 the vessel did not arrive at St. Michael's by the 31st of January, 
 1833, the charterer was to be at liberty to rescind the charter-party. 
 
 In the fruit trade, the early ships sail about the end of October, 
 and arrive in London about the end of December; and it is advan- 
 tageous to be early in the market. The charter-party was entered 
 into on the 20th of October. The usual length of the voyage is a 
 fortnight or three weeks ; the time consumed in loading and un- 
 loading about a week : so that if the defendant had sailed direct for 
 St. Michael's about the time he executed the charter-party, he might 
 reasonably have been expected to deliver his cargo in London by the 
 1st of January. Instead of proceeding direct to St. Michael's, the 
 defendant made an intermediate voyage to Oporto, returned to Ports- 
 mouth, sailed again for St. Michael's, arrived there before the 
 31st of January, was loaded with oranges, and arrived in London on 
 the 1st of February, by which time there was a glut of oranges in 
 the market, and the price had fallen, since the end of December, 
 when the London orange season commences, 105. Qd. a box. 
 
 It was contended for the defendant, that the stipulation that the 
 plaintiffs might rescind the contract if the defendant did not arrive 
 
 (/) Freeman v. Taylor, 8 Biiig. 124. See Garrait, 6 Bing. 716. Palmer v. Marshall, 
 Mount Vi LarJcins, 8 Bing. 108; Davis v. 8 Bing. 318. 
 
 (^) 1 Bing. N. C. 29.
 
 OO COXTEACT OF AFFEEIGHTMEXT BY CHAETER-PAETY — 
 
 Part IV. at St. MidiaePs by the 31st of January, led to the inference that the 
 defendant's engagement Avould be satisfied if he arrived by that day ; 
 and that, if he did so arrive, he had a right, in the interval, to 
 employ his vessel as he pleased. But Tixdal, C. J., said, "^The broad 
 question is, whether upon the construction of the charter-party, 
 there has been unnecessary delay in commencing the voyage to St. 
 Michael's ? Upon general principles in all contracts by charter-party 
 ■where there is no express agreement as to time, it is an implied stipu- 
 lation that there shall be no unreasonable or unusual delay in com- 
 mencing the voyage, and after it has commenced, no deviation. Now, 
 looking at the contract, I think, with a view to the object of the 
 voyage, its commencement -was delayed an unreasonable time. I do 
 not lay stress on tlie stipulation for proceeding iu ballast, any further 
 than it seems to refer to a voyage in which the master shall not lie 
 by to take in a cargo which might delay the ship on her voyage. As 
 the parties have stipulated that the lay days shall commence on the 
 1st of December, it may be inferred that they contemplated the 
 voyage to St. iNFichaeFs should terminate by that day. If, indeed, by 
 any accident or unforseen cause, which might excuse the master, the 
 vessel should arrive later, the charterer would have no just cause of 
 action ; but the intention at the time was, that the object of the 
 voyage should, if possible, take effect from the 1st of December. 
 That it might have taken effect from that time is clear, for the 
 voyage usually lasts a fortnight or three weeks, and the vessel sailed 
 from Oporto on the 7th of November. The instrument then goes 
 on — ' That in case the vessel should not be arrived at St. Michael's, 
 and in readiness to receive her cargo, by the 31st of January next, it 
 shall be optional Avitli the agents of the affreighters whether they 
 load or not ; and in case they decline loading, the charter-party 
 shall be null and void/ That was to give the charterer the option of 
 repudiating the contract, if the vessel should arrive too late for any 
 useful purpose ; although, if she had been detained by any justifiable 
 cause, he might have no right of action against the owner. All the 
 evidence in the cause goes to show, that the intention of the parties 
 in entering into this contract was such as I have described : the 
 course of the trade in Loudon, which requires a speedy voyage, and 
 gives advantage to those Avho are first in the market ; and the letter 
 of the 9th of November, in which the plaintiffs say, ' In having taken 
 the Swcdloiv to Oporto, with passengers, on her way to St. Michael's, 
 instead of proceeding direct, we consider you. to have deviated from 
 the due performance of the charter-party entered into with us, and 
 we hold you liable for any loss or injm'y which may arise to the 
 parties interested, in consequence of your not proceeding direct.' I 
 think, therefore, that as the commencement of the voyage was, 
 ■without any justifiable cause, delayed till the 6th of December, an 
 action lies for the plaintiffs." 
 
 A shipowner brought an action for stipulated freight against a 
 merchant who had hired a ship upon a charter-party, in which it was 
 covenanted that the ship should take in its full load of timber with 
 all possible expedition at Riga, and should then sail '^ with the first
 
 4. coxstrlctiox of. 189 
 
 favourable -wind^^ direct to Portsmouth. The ship arrived at Ports- Chap. 1. 
 
 mouth and delivered her cargo, which vras accepted by the merchant, • 
 
 who refused to pay the stipulated freight, under the allegation that 
 the ship had not sailed direct from Riga to Portsmouth, but had 
 unnecessarily put into Copenhagen, where she M'as detained until that 
 place surrendered to the British arms, and in consequence of which 
 deviation he had been obliged to have fresh insurances on the cargo ; 
 insisting that the special contract was avoided by the deviation, and 
 that the master could only be entitled to a reasonable compensation 
 for the conveyance of the cargo, in the estimation whereof allowance 
 should be made for the expense incurred by his fault. But Lord 
 Ellenbouough said " I am of opinion that this covenant to sail 
 with the iirst favourable wind direct to Portsmouth Avas not a condi- 
 tion precedent, and that the defendant having accepted the cargo must 
 pay the stipulated freight. To hold that any short delay in setting 
 sail, or trifling departure from the direct course of the voyage, would 
 entirely destroy the plaintiff\s right to be remunerated, would indeed 
 be going, 'inter apices facti ;' but here is a specific agreement for 
 specific freight — the defendant must bring his cross- action for any 
 loss he may have suffered from the defaiilt of the plaintiff^' («). 
 
 If a ship by a charter-party is to proceed " forthwith ^^ she must pro- 
 ceed without unreasonable delay — forthwith does not mean imme- 
 diately (6). 
 
 See Laing v. HoUivay, 47 L. J. Q. B. 512, where, upon the con- Despatch 
 struction of a charter-party, it was held, that the despatch money ^^^oney. 
 was payable for every hour saved during the whole twenty-four hours, 
 and not merely in respect of a working day of twelve hours. 
 
 On the question whether a charterer had performed his contract to Loading and 
 load within a reasonable time, it was held that "reasonable" meant Xartem^ ^^ 
 reasonable under ordinary circumstances, and that the jury had been 
 properly directed noi to take into consideration a dispute between 
 other persons, which in fact caused the delay, but which did not 
 appear to have been in contemplation of the parties (c) . 
 
 By a charter-party entered into between the plaintiff, the owner, 
 and the defendant, the charterer of the ship E. M., it was agreed that 
 the said ship should proceed to P., and there load '' a full and com- 
 plete cargo of cotton '' with a certain amount of sugar as ballast. The 
 ship proceeded to P., and after a portion of the cargo had been loaded 
 and while another portion was in a lighter lying alongside ready 
 for loading, the ship caught fire accidentally, and the portion of the 
 cargo on board was so injured that the master necessarily sold it. 
 
 (a) Bonimanny. Toolce, 1 Campb. 377. Sarris v. Breesman, 9 Ex. 485; 23 L. J. 
 
 The contract was not under seal. Constable Ex. 210. See Hv.rst v. Ushorne, ante, 
 
 V. Cloberie. Pahner, 397. Hall v. Caze- y>.\QQ; Hill \. Sugrue ; Kearon v. Pearson, 
 
 Hore, 4 East, 477. Since the Judicature 7H.&X. 386. Ashcrqftw Crow, S;c.,Co., 
 
 Acts the defendant miglit set up his loss by 43 L. J. Q. B. 194; L. E. 9 Q. B. 540. 
 
 way of counter-claim to the action for the where in an action for demurrage it was held 
 
 freight. that the defendants had contracted that 
 
 (6) Hudson V. Hill, 43 L. J. C. P. 73. they would load with the usual dispatch, 
 
 (c) Adams v. Royal Mail Steam Packet and that it was no answer that they were 
 
 Co., 5 C. B. (>-.s.) 492; 28 L. J. C. P. 33, unable to do so, or that the plaintiff' knew it.
 
 190 CONTEA.CT OF .AFFEEIGHTMENT BY CHAETEE-PAETY — 
 
 Part IV. He forwarded the portion alongside to its destination by a different 
 ship. After the ship had been repaired^ the plaintiff tendered it to 
 the defendants agents and required them to load the residue of the 
 cargo^ which they refused to do : — Held, that tlie defendant was not 
 exonerated by the circumstances from his obligation to complete the 
 loading of a full and complete cargo [a). 
 
 Under a charter- party ^ which provides that the cargo is to be dis- 
 charged with all dispatch^ according to the custom of the port, but 
 which does not otlierwise specify the time to be occupied in the dis- 
 charge, the duty of the charterer is to use reasonable diligence in 
 performing that part of the delivery which falls upon him according 
 to the custom of the port, but he is not bound to take measures to 
 obviate delays which may arise, owing to the custom of unloading at 
 the port, without his act or default — so held by Brett, L. J., and 
 Thesiger, L. J. [dissentient e, Cottox, L. J.) {b). 
 
 Where a ship was to proceed to a bar harbour, " or as near thereto 
 as she could safely get,^^ and the merchant was to load a full cargo, 
 and both parties to the contract knew it to be impossible for the ship 
 to get over the bar with a full cargo, the taking in a part of the 
 cargo within the bar, and w^aiting outside for the remainder, was 
 held — the ship's safe departure being thought to be implied in the 
 stipulation for her safe arrival — to satisfy the contract of the ship- 
 owner [c] . 
 
 Where the parties to the contract were ignorant that the ship when 
 fully laden at a jetty within such a harbour would not be able to pass 
 the bar ; and a full lading having been put on board, and bills of lad- 
 ing signed, part of it was necessarily unshipped, and the agent of the 
 charterer declining to reship such part outside the bar at the char- 
 terer's expense and risk, the ship sailed with a small portion only 
 of her cargo, it was held, that the charterer, having once performed 
 his contract by loading, with the master's consent, a full cargo at 
 the jetty (the usual place of loading in that port), could not be 
 required to load a second time, and that the shipowner was not 
 entitled to sue him for the agreed freight, nor for damages resulting 
 from his refusal to reship the cargo [d) ; but a merely temporary 
 impediment, such as the want of water at the bar of a navigable 
 river — the season being unusually dry (e)— or the want of w'ater in 
 a harbour resulting from the state of the tides, is no excuse for the 
 non-performance of the contract (/), 
 
 In an action on a charter-party, it appeared that the plaintiff, the 
 owner of the ship Fame [g), had chartered her to the defendants 
 
 {a) Jones v. Holme, 36 L. J. Ex. 192. (e) ScMIizzi v. Den-i/, 4 E. & B. 873. 
 
 (b) Postelthivaitev. Freeland, 48 L. J. (/) I'arker v. Winfow, 7 E. & B. 942; 
 Ex. 353, L. R. 4 Ex. D. 1.55. 27 L. J. Q. B. 49. See further as to load- 
 
 (c) Shields v. Wiliins, 5 Ex. 304. ing and miloadiiig in pursuance of the 
 
 (d) The General Sieam Navigation Co. charter-p.arty, ^o^/. Chap. 3 of this Part. 
 V. Slipper, 11 C. B. (x.s.) 493 ; 31 L. J. {g) Thomas v. Clarke, 2 Stark, N. P. C. 
 C. P. 185. Strngnell v. Friederickson, 12 450. 
 
 C. B. (N.S.) 452. Castifell v. Llof/d, 1 
 H. & C. 388 ; 31 L. J. Ex. 413.
 
 4, CO^STEUCTION OF, 191 
 
 on a voyage to Rio Janeiro^ and back to Liverpool, and tlie defen- Chap. 1. 
 
 dants stipulated to furnish a full cargo of lading for the return 
 
 voyage at Rio Janeiro. The breach was, that the defendants had 
 not procured a cargo at Rio Janeiro. The ship had returned without 
 any lading, and the question was, how the damages were to be 
 estimated. 
 
 A great many articles were specified in the charter-party, such as 
 coffee, cotton, sugars, &c., of which the cargo might consist; and the 
 defendants contracted to pay for the freight of each of these articles 
 separately by weight, for coffee at 125. 6d. per cwt., &c. 
 
 It was urged on the part of the defendants, that they were not 
 liable for more than the amount of the freight, supposing the vessel 
 to have been laden with one of the articles specified which Avould 
 have yielded the lowest amount of freight. Evidence was given of 
 the amount of freight, calculated on the supposition that one third 
 of the cargo consisted of coffee, another third of cotton, and another 
 third of sugar. Supposing the whole cargo to have consisted of 
 coflPee or of cotton, the amount would have been higher than the 
 average taken ; but if it it had consisted of sugar only, the amount 
 would have been less than this average. Lord Tenterden directed 
 the jury, that the proper course would be to estimate the freight by 
 means of an average, so as to take neither ti.e greatest possible 
 freight nor the least. 
 
 The same rule was applied in the case of Capper and Others v. 
 Forster (h), where it was agreed by memorandum of charter between 
 the plaintiffs, as owners of the ship Flora, and the defendant, that 
 the said ship should proceed with a cargo to Rio Nunez, and having 
 discharged the same, should reload a full and complete cargo of 
 lawful merchandise, which the defendant bound himself to ship, and 
 should therewith proceed to London, and deliver the same, on being 
 paid freight as follows, in full for the above voyage — viz., for gum, 
 bees^ wax, ivory, and palm oil, 4/. per ton of 20 cwt. nett at the 
 king's beam ; hides at 71. per ton of 20 cwt. nett at the king's beam; 
 paddy or rice 3/. per ton nett weight; bullion 1/. per cent.; all or 
 either at the option of the charterer, &c. Should the quantity of 
 paddy exceed eighty tons, 20s. per ton extra freight was to be paid 
 on the surplus, and the quantity of hides was not to exceed fifty tons. 
 Should paddy or rice be shipped, the charterer was to find dunnage ; 
 and should the vessel not be full at Rio Nunez, the charterer was to 
 have the liberty of filling her up at St. Mary's. 
 
 (A) 3 Biiif^. N. C. 938; 5 Scott, p. 129. owner should accept about 1,100 tons as a 
 
 By a charter-party, it was agreed that the full and complete cargo. The allowance 
 
 ship, the measurement of which was not of 3 per cent. w(nild he a fair estimate for 
 
 given, should proceed to the port of load- satisfying tlie word " ahout," and therefore 
 
 ing, and there load "a full and complete under this charter-party 1,133 tons would 
 
 cargo of iron ore," ..." say about 1,100 be the measurement of a full and complete 
 
 tons." Held, that the meaning was that cargo, though the cajjacity of the ship 
 
 the charterer should load a full and com- exceeded that quantity. Morris v. Levison, 
 
 plete cargo, but that if the ship should 45 L. J. C. P. 409. 
 carry more than about 1,100 tons, the ship-
 
 192 CONTEACT OP AFFIlEIGHT:^rEXT BY CHAETEK-rAETY 
 
 Part IV. The breach Mas^ that the defendant did not load at Rio Nunez, nor 
 fill up at St. Mary's, a full and complete cargo of lawful merchan- 
 dise ; but that on the contrary, after loading a small portion of such 
 merchandise at Rio Nunez, he proceeded to St. Mary^s, and then 
 Avrongfully filled up the ship with a quantity of merchandise other 
 than according to the true intent and meaning of the memorandum 
 of charter, to wit, wiih timber and wood. To this the defendant, 
 admitting that he had not loaded a full cargo of lawful merchandise 
 at Rio Nunez, pleaded that he had filled up the ship at St, Mary's 
 with such lawful merchandise. 
 
 It appeared at the trial that the master, having loaded at Rio 
 Nunez about one-seventh of a full cargo, including one box of gold 
 dust, and one hundred and fifty-three quarters of paddy, proceeded 
 to St. Mary's, there took on board two hundred and five quarters of 
 paddy and six hundred hides, and filled up the rest of the ship with 
 eighty-four loads of teak wood, at the freight of 4/. a load, under 
 a protest from the captain that it was not to affect the claim of the 
 owners. 
 
 The defendant paid into Court 593/. 10^. Qd. 
 
 The plaintiffs contended that they were entitled to the freight 
 which would have been earned if there had been a full cai'go of the 
 articles enumerated in the charter-party; the defendant contended 
 that he had a right to put on board a cargo consisting of any one of 
 the enumerated articles. His witnesses proved that a cargo of palm 
 oil would not have produced 538/., and that it was usual in this 
 trade to insert in the charter the articles here specified, and to add, 
 '^and other goods in proportion.'^ The jury found, that a full 
 cargo of the various articles enumerated would have produced 668/. 
 freight — a cargo of palm oil only 452/. ; that the defendant did not 
 fill up at St. Mary's a full and complete cargo of lawful merchan- 
 dise, according to the true intent of the charter; and that there 
 remained due to the plaintiffs a sum of 74/. Is. del., for which they 
 gave their verdict. 
 
 A motion having been made for a new trial, or for a reduction of 
 damages, the Court of Common Pleas was of opinion that the jury 
 were right in finding that the loading the lumber at St. Mai-y's, 
 although it was the staple commodity of the place, was not a filling 
 up with lawful merchandise according to the intention of the parties, 
 and that the damages ATcre properly estimated on the same principle 
 as if the ship had come home empty, the freight being calculated 
 upon average quantities of all the articles enumerated. 
 
 A ship was chartered to proceed to Port Philip, and there load 
 from the freighter's factors a full and complete cargo of wool, tallow, 
 bark, or other legal merchandise — the quantity of bark not to exceed 
 one hundred tons, and the quantity of tallow and hides not to exceed 
 eighty tons — and therewith to pi'oceed to London, and deliver the 
 cargo on payment of specified rates of freight for each of the enume- 
 rated articles. 
 
 It was held, that the freighter was entitled to load the ship with an 
 assorted cargo of any legal merchandise, but that the owners were
 
 4. COXSTRUCTION OF. 193 
 
 entitled to be paid freight^ on the supposition that the loading had Chap. 1. 
 consisted of the stipulated quantities of the goods enumerated (a) . 
 
 In another case it was agreed by a charter-party that the ship 
 should proceed to Baltimore^ there load a full cargo of produce and 
 proceed therewith to the U. K., and deliver the same on being paid 
 freight at and after the rate of 55. 6d. per barrel of flour^ meal^ and 
 naval stores, and II5. per quarter of 480 lbs. for Indian corn or other 
 grain, but the cargo was not to consist of less than 3,000 barrels of 
 flour, meal, or naval stores, and that not less flour or meal than naval 
 stores was to be shipped. Tlie vessel arrived with a cargo of various 
 articles, among which were 2,000 bushels of oats and three barrels of 
 flour. The evidence showed that a quarter of Indian corn or wheat 
 weighing 480 lbs. would occupy a space of 10 5 cubic feet, and that a 
 quarter of American oats weighing 272 lbs. would occupy a space of 
 16 cubic feet. It also appeared that oats were not a usual shipment 
 for America. It was held that " other gi-ain^^ in this charter-party 
 must be taken to mean such description of grain as would average 
 480 lbs. to the quarter, and therefore to exclude oats ; and that the 
 shipowner was entitled to receive freight upon the supposition that 
 3,000 barrels of flour, meal, or naval stores had been shipped, and for 
 the rest of the space at the rate of 1 Is. per quarter of Indian corn, or 
 other grain of 480 lbs. the quarter [b). 
 
 It will be observed, that these charter-parties contained no stipula- 
 tions giving to the freighter an option of providing a cargo made up 
 in any other way than that specifically pointed out, and of which the 
 plain object, reference being had to the course and nature of the par- 
 ticular trade, was to ensure a profitable employment for the ship. 
 In the absence of such stipulations, a construction was put upon the 
 charter-parties not inconsistent with their terms, and eff'ectuating the 
 probable understanding and expectation of both parties when their 
 contract was made. What the owner could not prudently have 
 assented to — what the freighter could not reasonably have insisted 
 upon, and had not taken care to express — was presumed to have been 
 intended by neither. If it appear from the terms of the contract 
 between the buyer and seller of a cargo, that the buyer should take 
 the chance of its turning out more or less than was expected, he will 
 of course have no claim against the seller for short delivery (c) . A 
 purchaser has been held entitled to refuse the bill of lading and ship- 
 ping documents, and to pay for the cargo, on the ground that they 
 represented a quantity of goods in excess of the maximum which he 
 had fixed for the shipment, and also if they incorrectly represented 
 the quantity to be within the limits which he had fixed {d). 
 
 [But although the words of a charter-party may receive a liberal 
 construction, yet the construction must not be inconsistent with 
 their plain and obvious meaning ; and, therefore, in the case of a] 
 
 (a) Cockburn v. Alexander, 6 C. B. 791. (d) Tamvaco v. Lucas, 1 E. & B. 581 ; 
 
 (b) Warren v. Peabody, 8 C. B. 800. 1 B. & S. 185. 
 
 (c) Covas V. Bingham, 2 E. & B. 836. 
 See Tully v. Terry, 42 L. J. C. P. 240. 
 
 O
 
 194 CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY — 
 
 Part IV. [cliarter-partyj by whicli the sliip was to sail from London, to join 
 
 ' convoy, and proceed from thence to Barcelona, and there deliver her 
 
 cargo; and forty-one running days were to be allowed to Avait at 
 Portsmouth for convoy, and to discharge the cargo at Barcelona, the 
 said forty-one days to be accounted and commence at Portsmouth 
 twenty-four hours after her arrival there, and at Barcelona the day 
 the ship should be ready to deliver her cargo, and for all the time 
 beyond the forty -one days thirteen shillings ^;er ton were to be allowed 
 for demurrage; Lord Kenyon held that the demurrage was only 
 payable for delay beyond the jorty-one days in waiting for convoy at 
 Portsmouth, and in discharging the cargo at Barcelona, and not for 
 the delays which the ship had experienced in waiting for convoy at 
 Falmouth, to which place she was ordered to proceed from Ports- 
 mouth, by the AdmiraPs secretary; and at Gibraltar Bay, into which 
 she sailed under the direction of one of the sloops appointed to convoy 
 the fleet, the rest having been dispersed in a storm, and where she 
 waited tivelve days for convoy to proceed to Barcelona [a) . 
 
 It is probable that if the events which took place in the course of 
 this voyage had been foreseen by the parties, the number of days 
 Avould not have been confined to waiting for convoy at Portsmouth 
 only, but would have been expressed to be for waiting for convoy 
 generally ; but to have put such a construction upon this instrument 
 w^ould have been to substitute other words for those which the parties 
 to it had thought proper to vise. And the reader will observe that, 
 in this case, there was not (nor indeed could have been) any general 
 usage of trade applicable to the stipulation in question.] 
 
 In the case ot Moorsom v. Page [b], the ship Lavinia was let to 
 freight by the plaintiff to the defendant for a voyage from Rio de la 
 Plata to London. The plaintiff covenanted to "receive and take on 
 board the said ship a full and complete cargo, consisting of copper, 
 tallow, and hides, or other goods, but not more than fifty tons of 
 copper and tallow, nor more than fifteen of such fifty tons to consist 
 of copper;" and the defendant undertook to furnish and provide for 
 loading " on board the said ship a full and complete cargo of copper, 
 tallow, and hides, or other goods as above-mentioned, and to pay 
 freight for the said cargo as follows : — for copper the sum of 6/. 
 sterling per ton; for tallow, the sum of 21. sterling per ton; for hides, 
 the sum of \hd. sterling per pound, all nett weight at the king's beam, 
 and for all other goods in proportion thereto.^^ 
 
 It appeared that the defendant had provided for the ship a quantity 
 of tallow, and as many hides as she chose to take in, but that he 
 refused to let her have any copper. It was in consequence necessary 
 for her to keep in her ballast, the place of which might have been 
 supplied by the copper, and the amount of the freight which she 
 earned was less than if copper had been supplied. The plaintiff con- 
 
 (a) Marshall v, De la Torre, 1 Esp. {I) 4 Campb. 103. Cockbvrn v. Alex- 
 
 N. P. C. 367. cinder, 6 C. B. 791.
 
 4. CONSTHUCTION OF. 195 
 
 tended, that under the covenant to load the ship, Uie defendant was Chap. 1. 
 
 hound to furnish her with a properly assorted cargo, so that she might 
 
 be entirely filled with goods, on which freight would be due, and that 
 lie was, therefore, liable in damages for a sum equal to the freight 
 which would have been earned had fifteen tons of copper been put on 
 board. 
 
 ^'^The parties/-" said Lord Ellenborough, ^Wery likely intended 
 that copper should necessarily form a part of the cargo, but they have 
 not said so. The covenant leaves a latitude to the freighter to furnish 
 a cargo of copper, tallow, hides, 'or other goods;' therefore, if the 
 ship had as large a quantity of tallow and hides as she could take on 
 board, I think the covenant has been performed/' 
 
 The case of Irving v. Clegg {c) Avas decided upon the same 
 principle. 
 
 By charter-party it was agreed that the ship Eliza, of the burthen 
 of three hundred and twenty-three tons, or thcreabcmts, should take 
 in and receive all such lawful goods as might be sent alongside, but 
 not exceeding three hundred tons of dead weight; and being so 
 loaded, should proceed therewith to Batavia, and there, or at Soura- 
 baya, discharge the same ; and being so unloaded, should at a port or 
 ports in Sumatra or Java, both or either, load a full and complete cargo 
 of merchandise, the fore-cabin or dining-room included, to be filled 
 with light goods, Avliich the defendants bound themselves to ship, not 
 exceeding, &c. ; and being so loaded should proceed to London, Rot- 
 terdam, or Antwerp, and deliver the same on being paid freight for 
 the outward cargo 300/., and for the homeward cargo at and after the 
 rate of 4/. L55. per ton of 20 cwt. for sugar, coffee, and rice, and for 
 pepper at 18 cwt. to the ton, nett weight at the king^s beam, the tare 
 of the sugar not to exceed six per cent. ; and for all other goods, 
 except those ah'cady mentioned, in just and fair proportion, according 
 to the East India Company's scale of tonnage. It was further agreed, 
 that one hundred tons of rice or sugar should be shipped, previous to 
 any other part of the loading, to ballast the vessel, and keep her in 
 proper trim for the voyage. Upon this charter-party it was contended, 
 that the defendants should have shipped a full cargo, so assorted and 
 so complete as to render it unnecessary for the plaintiff to ship any 
 ballast. It was proved, that though the ship was fully loaded, they 
 had stowed such a proportion of pepper as to render it necessary for 
 the master to ship thirty-six tons of stone ballast, for the safety of 
 the vessel, in addition to the one hundred tons of rice. Lord Chief 
 Justice TiNDAL said, ^'Had it not been for the insertion of the stipu- 
 lation at the end of the charter-party, it would have been clear that, 
 under the agreement by the freighter to furnish a full and complete 
 cargo of merchandise, with the subsequent enumeration of the rates 
 of freight for sugar, coffee, rice, pepper, 'ana all other goods,' the 
 freighter would be at liberty to load the ship with whatever goods 
 
 (e) 1 Bing. N. C. 53. See Southampton Steam CoUieiy Co. v. Clarice, 40 L. J. Er. 8. 
 
 o 2
 
 196 CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY — 
 
 Part IV. and in whatever proportion he thought proper ; and that the loss of 
 
 freight, if any loss arose from the necessity of putting ballast into the 
 
 ship, would be a loss that must fall on the owner. The question 
 arises upon the stipulation by which the merchant undertakes to 
 ship one hundred tons of rice or sugar, previous to any other part of 
 the lading, 'to ballast the vessel and keep her in proper trim for the 
 voyage/ and the question is. Whether, under this stipulation, the 
 freighter is bound to make up a full cargo of other articles, in such 
 proportions that freight shall be payable for the whole tonnage of the 
 ship, or whether he may load a full cargo of the lightest commodities; 
 and if any ballast is then wanting, it must be put in by the master, 
 and occasion j9?-o tanto a loss of freight ? We think the latter is the 
 true construction of the agreement. In the first place, it is consis- 
 tent with the very terms employed by the parties, and it is some 
 violence to those terms to hold them to extend to one hundred and 
 thirty- six tons, or to any other quantity that might be found neces- 
 sary to ballast the ship. In the next place, it is the duty of the 
 owner to find proper ballast for the ship, in order to make her trim 
 for her voyage. The agreement in question, therefore, is an agree- 
 ment made for the benefit of the owner, as it relieves him from so 
 much of the obligation as is usually thrown upon him, and ensures 
 him a freight from what would otherwise be unproductive. But it 
 leaves the owner still liable to that obligation, except so far as the 
 special agreement will extend, which here, by the very terms of it, is 
 to one hundred tons only^" {a). So where the charterer agreed to 
 loud a jull and complete cargo of sugar or other produce, at certain 
 rates for certain specified goods, including sugar and timber, '' other 
 goods, if any be shipped, to pay in proportion to the foregoing rates, 
 except what may be shipped for broken stowage, which shall pay as 
 customary,^' it was held that the contract was not performed by 
 shipping as full a cargo of timber as the ship could carry, leaving 
 intei'stices between the cargo of timber which might have been filled 
 with broken stowage {b) . 
 As to freight [A charter-party for a voyage with the ship Anne (c) from London 
 payable and ^q g^ Petersburgh aud back, after the usual clauses for unloading and 
 not^lo^dln^'^ loading at St. Petersburgh, and payment of freight at a certain rate 
 cargo. per ton of the ship's capacity, contained the following special stipu- 
 
 lations — viz., the master covenanted that if political or other circum- 
 stances should arise to prevent the shipping a return cargo, or 
 discharging the outward cat-go, the merchant or his agents should 
 be at liberty to detain the ship at St. Petersburgh for forty days in 
 the whole after her arrival there ; and the merchant covenanted,] 
 
 (a) When a full cargo is supplied, it is fair proportion thereto." The shipowner 
 
 (in the absence of any stipulation, express may put merchandise on board as ballast if 
 
 or implied, to the contrary) the sliipo^\iier's it occupy no more room than the ballast 
 
 duty to procure what ballast he may require would have done. — Towse v. Henderson, 
 
 for that cargo. See Southampton Steam 4 Ex. 890, 19 L. J. Ex. 163. 
 Colliery Co. v. Clarice, 40 L. J. Ex. 8, and {h) Cole v. Meek, 33 L. J. 183 j IhicTcett 
 
 see this case as to the meaning of " if any v. Sallerfield, 37 L. J. C. P. 144. 
 other cargo be shipped, to pay in full aud (c) Fuller v. Stainforth, 11 East. 232.
 
 4. CONSTRUCTION OF. 197 
 
 [that after the sliip should have remained there for that time without Chap. 1. 
 delivery of the cargo^ the master should be at liberty to return with • 
 
 his vessel to London, or any other port in England, and that he 
 would pay him 2,500/. immediately upon the arrival of the ship at 
 London, or any such port in England. In fact, the Russian Govern- 
 ment refused to permit the cargo to be landed at St. Petersburgh, 
 and the master, intending to act for the best, after waiting the forty 
 days, proceeded to Stockholm, and there sold the cargo to some 
 disadvantage, and took in other goods, which he brought to London 
 upon freight. It was contended that the master had no right to the 
 2,500/., because he had not returned direct from St. Petersburgh to 
 England ; but the Court of King's Bench decided that he was not 
 bound so to do, considering that such a construction of this instru- 
 ment might, under oircumstances, be very inconvenient to both 
 parties, and determined that he was entitled to the stipulated sum, 
 after a deduction for the freight earned in bringing the goods from 
 Stockholm. 
 
 Upon another charter-party, in similar terms, a question after- 
 wards arose between the master and the merchant. This was on the 
 ship Resolution ; the money to be paid on the contingency before 
 mentioned was 2,700/., with 10/. per cent, thereon, and one hundred 
 guineas as a gratification to the master. A small quantity of lead 
 was the only thing taken out from England. The ship not being 
 allowed to unload at St. Petersburgh, and no cargo being offered, 
 nor directions given on the part of the merchant, the master, after 
 waiting the forty days, sailed to Stockholm, and there took in a 
 cargo of hemp, which he stowed upon the lead, and returned with 
 both to London, and there delivered the lead to the merchant. Some 
 expense was incurred in relation to the lead, and a considerable 
 expense in obtaining and waiting for the cargo of hemp. The clear 
 profit of bringing this cargo was about 2,400/. ; the sum payable 
 under the charter-party, if the contingency had not happened, and 
 the outward cargo had been delivered and a homeward cargo brought 
 back, would have been about 4,000/. The master offered to settle 
 the account with the merchant by charging him what would have 
 been due if he had loaded the ship homeward, and allowing him the 
 benefit of the clear earnings that had been made ; thus demanding 
 from him about 1,600/. But this he refused, and insisted that the 
 earnings should go in diminution of the 2,700/., &c., and that the 
 master was therefore entitled only to about 600/. Upon this the master 
 brought an action in the Court of Common Pleas, upon the charter- 
 party, for the non-payment of the 2,700/., with the per centage and 
 gratuity. At the trial the jury gave a verdict for those sums. An 
 application was made to the court to reduce the verdict to the sum 
 that had been previously oftered by the merchant; but, after argu- 
 ment, the verdict was allowed to stand. The decision of the case on 
 the ship Anne was strongly urged as an authority in support of the 
 application : in support of the verdict it was argued that this payment 
 of the 2,700/., &c., was the stipulated price of a mutual release from 
 the contract ; and the court, adverting to the particular terms of this]
 
 198 COXTKACT OF AFFEEIGHTMENT BY CHARTERPAKTY — 
 
 Part IV. [iustrument, considered that the parties liad thereby fixed and ascer- 
 
 taincd^ b}^ their own agreement, the sum to be paid in the event that 
 
 had happened ; and although it "svas thought that the master was 
 bound to bring back the lead, yet it was held that he was at liberty 
 to bring back other goods also for his own benefit, if he could obtain 
 them {a) . By this decision, the master, in effect, received more than 
 he had originally claimed when he made the very fair and equitable 
 offer before mentioned, and more than he would have received if the 
 merchant had loaded the ship at St. Petersburgh ; but as the mer- 
 chant had rejected the offer, the parties stood before the court upon 
 their legal rights. 
 
 It is interesting to remark the coincidence of this decision of the 
 Court of Common Pleas with the opinions of two learned foreigners 
 on an article of the French ordinance, somewhat similar to the parti- 
 cular agreement of these parties. In the first place, it "odll be recol- 
 lected, that the parties had fixed a sum to be paid in the event of the 
 merchant's not loading the ship, and that this sum was about half of 
 what the master would be entitled to if he had brought a cargo. The 
 case did not stand upon a general covenant to load the ship. The 
 proper remedy of a breach of such a covenant, according to the law 
 of England, would be an action for damages ; and in estimating the 
 damages, the jury would make a deduction for such benefit, if any, 
 as the master might derive from bringing the goods of other persons; 
 but if he should have been obliged to return empty, they would award 
 damages equivalent to the sum that would have been payable by the 
 merchant for a full cargo — taking care on the one hand that the 
 master should lose nothing, and on the other hand that he should 
 gain nothing by the breach of the merchant's contract. And this 
 agrees with the opinions of Yalin and Pothier on one of the articles 
 of the French ordinance, which imports, that ''the merchant 
 who does not load the quantity of goods mentioned in the charter- 
 party shall nevertheless pay the freight as if the whole had been 
 laden'' {b). . NotAvithstanding this rule, they say, if the master pro- 
 cures goods from other persons, the freight that he derives from them 
 shall go in diminution of the sum to be paid by the merchant (c), for 
 the ordinance awards the ohole to him only by way of indemnity {d). 
 But there is another article of the ordinance Avhich, as a general rule, 
 is very extraordinary. "If the contract be for a certain quantity of 
 goods," not the entire ship, " the merchant who will withdraw his 
 goods before the ship's departure may cause them to be unloaded at 
 his own expense, on payment of a moieUj of the freight" {e). This 
 is analogous to the particular stipulation in the charter-party of the] 
 
 (a) \_Bell V. Fuller, 2 Taunt. 285. The Bayiet, J., expressly said he thought the 
 
 judgment in this case was questioned inci- judgment right. See Puller v. Rallklay, 
 
 dentally in the Court of King's Bench in 12 East. 49-1.] 
 
 an action depending on one of the policies (6) Ordonnauce de la Marine du Mois 
 
 of insurance effected by Messrs. Puller, but d'Aout, 1681, lib. 3, tit. 3, Fret. art. 3. 
 
 the court thought the insurers bound by (e) Pothier, Charte-partie, num. 76 
 
 this judgment. None of the learned judges \d) 1 Yalin, p. 642. 
 
 questioned the propriety of the decision j \e) Fref. art. 6.
 
 4. CONSTRUCTION OF. 199 
 
 [Resolution. The reason of this article, saj-s Valiu (/), is, that the Chap. 1. 
 
 master may find other goods to replace those that are withdrawn, ■ 
 
 and a moiety of the freight is considered as a sufficient recompense 
 for the delay that may be occasioned ; whence it follows, that the 
 master shall have the moiety without deduction, although in the end 
 he may obtain a full cargo. Pothier, with more precision, says, 
 '' The moiety of the freight, which the merchant pays in this case, 
 being the price of the risk that the merchant runs of not being able 
 to let to other persons the part of his ship which the merchant's 
 goods ought to occupy, or of not finding an equally valuable freight, 
 he ought to have the profit of this moiety, and to retain it, although 
 he may be able to let out this part for an equal or even a greater 
 freight ; for having run the risk of losing the freight of this part, if 
 he had not been able to let it, he ought to have the profit of it. The 
 master, by relinquishing, under this obligation of law, a moiety of 
 the freight to the merchant, acquires the right of employing for his 
 own benefit the part that had been let to him '-" {(/) . So in the case 
 of this charter-party, the master having agreed to accept, as a sub- 
 stitute for his general right to an equivalent in damages, in case the 
 merchant should not load the ship, a fixed sum short of the price of a 
 full cargo, by which he might be a loser if he could not obtain a cargo 
 elsewhere, was entitled to the Avhole of the stipulated sum as the price 
 of the risk, if he had the good fortune to find other persons who would 
 load his ship {h) . 
 
 In a charter-party for a period of time at a certain monthly freight, 
 to be paid at particular times therein mentioned, it was stipulated 
 that the vessel should be navigated by fifty persons, and such further 
 number, not exceeding one hundred, as the merchant should require, 
 and that he should make an allowance to the owner for the expense 
 of the men bej-ond fifty ; two calendar months' allowance for such 
 men to be added to the first payment of freight ; but the residue of 
 such allowance not to be paid until the ship's discharge or return 
 from her first intended voyage. An additional number of men were 
 employed at the merchant's request, and alter the ship had been in 
 his service for about ten months she was accidentally burnt in the 
 West Indies. The merchant contended that he was not bound to 
 pay the allowance for more than the first two months ; but the court 
 held the loss of the ship to be a discharge from his employment 
 within the meaning of this contract, and he was compelled to pay the 
 allowance up to the time of the loss.] " The defendants," said Lord 
 Ellenborough, " contend that the stipulations in the charter-party, 
 which fix the times for paying the freight, make the right to the 
 portions of freight payable at those times depend upon the then safety 
 of the ship ; and that the loss of the vessel before any one of those 
 periods destroys the right except for such freight as was previously 
 payable. It is to be remembered, however, that the charter-party 
 stipulates that the defendants shall pay a given freight per calendar 
 
 if) 1 Vallu, p. Q4:Q, {h) See Sparrow v. Bois, 31 L. J. Ex. 
 
 (c/) Charte-partie, nuiUi 78. 34.
 
 200 COXTEACT OF ATTEEIGHTMENT BY CHAETEE-PAETY. 
 
 Part IV. month ; and the time fixed for its actual payment can only be con- 
 
 sidered as postponing, for the defendants^ convenience^ the actual 
 
 payment of a sum then due to a future period^ not as creating a con- 
 tingency whether it should ever be paid at all. Each month's 
 freight, therefore, was earned and became completely due at the end 
 of each month, and it was nothing but the actual payment that was 
 postponed" («). 
 
 In an action against the charterer of a ship for not loading a cargo, 
 the measure of damage is the amount of freight which would have 
 been earned after deducting the expenses and any profit which the 
 ship may have earned during the voyage stipulated by the charter- 
 party [b) . The ship owner is not bound to seek for a new cargo in 
 order to realize for a charterer in default the damages to be paid by 
 him (c). But a jury may take any unreasonable conduct in this 
 respect on the part of the master, and any consequent loss of freight 
 into consideration, and moderate, on account of it, the damages to be 
 paid by the charterer {d). 
 
 See Featherston v. Wilkinson, 42 L. J. Ex. 78, whfere, in an action 
 by charterer against ship owner for default in not being ready to 
 load, it was held that the former might recover as damages addi- 
 tional price paid for articles to be shipped as well as difEerence in 
 freight. 
 
 5. Of Covenants in Charter-parties. Conditions precedent. 
 
 Eule to dls- Whether or not a particular covenant by one party be a condition 
 cover whether precedent, the breach of which Avill dispense Avith the performance of 
 a covenant a ^jjg contract by the other, or an independent covenant, is a question 
 precedent. ^^ be determined according to the fair intention of the parties, to be 
 collected from the language employed by them [e) . An intention to 
 make any particular stipulation a condition precedent should be 
 clearly and unambiguously expressed. The general rule (in the words 
 of Lord Ellen borough) (/) is, that unless the non-performance 
 alleged in breach of the contract goes to the whole root and con- 
 sideration of it, the covenant broken is not to be considered a con- 
 dition precedent, but as a distinct covenant, for the breach of which 
 the party may be comijcnsated in damages. 
 
 In Ritchie v. Atkinson [g) the master and freighter of a vessel of 
 four hundred tons mutually agreed in writing that the ship should 
 proceed to St. Petersburgh, and there load from the freighter's factors 
 a complete cargo of hemp and iron, and proceed therewith to London, 
 
 (a) \_navelock v. Geddes, 10 East, 555.] (e) Haveloch \. Geddes, 10 East. 555 ; 
 
 Cro2te/-v. <SWM, 1 Scott, E.N. 338. Browne Clipsham v. Verfue, 5 Q. B. 265; Brad- 
 
 V. Burton, 17 L. J. Q. B. 49. ford v. Williams, 41 L. J. Ex. 164. 
 
 {h) Smith v. M'Guire, 3 H. & N. 554} (/) Davidson v. Gicynne, 12 East. 381. 
 
 27 L. J. 465, Ex. {g) 10 East. 295 ; Spence v. CkadxcicJc, 
 
 (e) Per Maetin, B., ihid. 10 Q. B. 517. 
 
 {d) Wilson V. Hicks, 26 L. J. Ex. 242.
 
 6. COVENANTS IX — CONDITIONS PRECEDENT. 201 
 
 and deliver the same, on being paid freight for hemp 5/. per ton_, for Chap. 1. 
 
 iron 5*. a ton, &c. The master under a reasonable and well-grounded ■ 
 
 apprehension of an embargo, sailed from St. Petersburg!! with a cargo 
 of hemp little more than half of what the vessel could have carried 
 though there was as much hemp of the defendants lying in lighters 
 alongside of the vessel as would have completely loaded her. The 
 vessel arrived at London, and delivered her cargo there to the defen- 
 dant, who refused to pay the freight, on account of the deficiency of 
 the cargo. Lord Ellenborough said, " If the delivery of a com- 
 plete cargo were a condition precedent to the recovery of any freight, 
 no doubt the defendant would be entitled to require the strictest 
 performance of it ; but the question is. Whether it be a condition 
 precedent ? and that depends not on any formal arrangement of the 
 words, but on the I'eason and sense of the thing, as it is to be collected 
 from the whole contract. The rule was well laid down by Lord 
 Mansfield, in Bonne v. Eyre {h), that where mutual covenants go to 
 the whole of the consideration on both sides, they are mutual con- 
 ditions, the on'e precedent to the other ; but where the covenants go 
 only to a part, there a remedy lies on the covenant to recover damages 
 for the breach of it ; but it is not a condition precedent. There is no 
 case where the delivery of less than a complete cargo has been held 
 not apportionable. Where, as in Smith v. Wilson (i), the freight is 
 made payable upon an indivisible condition, such as, in that case, the 
 arrival of the ship with her cargo at her destined port of discharge, 
 such arrival, &c., must be a conditioned precedent, because it is 
 incapable of being apportioned. But here the delivery of the cargo 
 is in its nature divisible, and therefore I think it is not a condition 
 precedent. But the plaintiff is entitled to recover freight in propor- 
 tion to the extent of such delivery, leaving the defendant to his 
 remedy in damages for the short delivery. And all the cases of con- 
 ditions precedent have been where the thing to be done was a strict 
 indivisible condition." 
 
 In the case of Havelock v. Geddes (k), the ship owner had cove- 
 nanted in the charter-party that the ship should at his expense be 
 forthwith made tight and strong, and fitted, &c., for a voyage for 
 twelve months to foreign parts. The ship sailed from London with a 
 cargo put on board by the merchant. Upon her return, the mer- 
 chant refused to pay the freight, alleging that nothing was due, 
 because the owner had not forthwith duly made his vessel tight and 
 strong, in consequence of which she had been compelled to stop at 
 Portsmouth to repair, and he lost the use of her for a long time, and 
 his goods were injured. But this was held to be no legal answer to 
 the demand — not even for the period of her stay at Portsmouth to 
 repair — the merchant having accepted the ship, and taken her into 
 his employment, and put his goods on board. Lord Ellenborough 
 
 {h) 6 T. R. 573; 1 H. Bl. 254 {Jc) 10 East 555. 
 
 (0 8 East. 437; and see ]^ost, chapter 
 on freight.
 
 202 COXTEACT OF AFFi{ET(THT:\rEXT BY CHAETER-PAETY. 
 
 Part IV. said, '^ Had the plaiutiff^s neglect precluded the defendants from 
 
 making any use of the vessel, it would have gone to the Avhole con- - 
 
 sideration, and might have been insisted on as an entire bar, because 
 the consideration for the defendants^ covenant to pay the freight 
 would then have failed in toto ; but as the defendants have had some 
 use of the vessel, notwithstanding the plaintiff^s neglect, the plain- 
 tiff's covenant is to be considered as going to a part only. The 
 consideration has not wholly failed, and the covenant cannot be 
 looked upon as having raised a condition precedent, but merely as 
 giviug the defendants a right, in a counter action (a), to such damages 
 as they can prove they have sustained from his neglect.'' 
 
 The cases of Constable v. Cloherie, and Bornmann v. Tooke {b), 
 above cited, were decided upon the same principles. 
 
 In the case of another charter-party for time at a monthly pay- 
 ment, whereby the master convened that, immediately after being 
 loaded and despatched, he would (wind and weather permitting) sail 
 with the first convoy for the intended voyage ; the voyage being in 
 fact performed, it was held that the hire might be recovered, although 
 the master had neglected to sail with the first convoy (c) . 
 
 In an action of covenant brought by the owner of the ship Concord 
 against the freighters, it appeared that by the charter-party the vessel 
 was to proceed by Cagliari to Naples, and there make a delivery of 
 her outM'ard cargo ; and having so clone, she Avas to take on board a 
 homeward cargo, and proceed therewith to London. The merchants 
 covenanted that they would find and provide, as they did Avarrant and 
 assure to the plaintiff, a full and complete homeward cargo ; and they 
 undertook that 1,750/., part of the outward freight, should be paid on 
 delivery of the outAvard cargo, and the remainder of the freight in 
 equal moieties, Avithin a certain time after the ship should be reported 
 inwards at London. The ship arrived at Naples, and Avhile waiting 
 there to deliver, Avas seized and taken, and the cargo landed, by order 
 of the government there ; but the master Avas put into possession of 
 the ship, for the purpose of loading his homeward cargo. The mer- 
 chants did not furnish a homeAvard cargo, and contended that they 
 were not bound to do so, nor to pay the 1,750/. The OAvner, on the 
 
 (ff) Since the .ludicature Acts the de- load, and that pleas denying those state- 
 
 fendant might set up his loss by a counter nients in the declaration, without alleging 
 
 claim in an action for the freight. that by reason of non-compliance with 
 
 (6) Ante, 189. See Hall v. Cazenove, them the object of the charter-party and 
 
 4 East. 477. Clipsham v. Vertue, 5 of the voyage was wholly frustrated would 
 
 Q. B. 265; Seeger v. Du.ihie, 8 C. B. (x.s.) be bad." " See post. Part IV. c. 5, s. 1; 
 
 45; 29 L. J. C. P. 253; and in Exch. Ch. Thompson v. Gillespie, 5 E. & B. 209; 24 
 
 8 C. B. (y.s.) 72 ; 30 L. J. C. P. 65 : 32 L. J. Q. B. 340, in which it was held that 
 
 L. J. Q. B. 204 ; Behn v. Burness, post, such a stipulation may be a condition pre- 
 
 p. 206. cedent, if other stipulations in the charter- 
 
 (c) Davidson v. Gtcynne, 12 East. 381. party relating to insurance, e.^., imply that 
 
 See Tarrahochia v. Eickie, 1 H. & X. 183; a warranty of sea- worthiness was intended. 
 
 26 L. J. Ex. 26, in which it was held that See Tully v. Howling 46 L. J. Q. B. 388, 
 
 the usual stipulations that the ship should L. K. 2 Q. B. D. 182, where there was a 
 
 be " tight, staunch and strong," and should time charter, and it was held, that the time 
 
 " sail with all convenient speed, and within at which the vessel was to be ready was 
 
 a reasonable time, were not conditions pre- the essence of the contract. Sec Hudson 
 
 cedent to the performance of a contract ti> v. Hill, 43 L. J. C P. 273.
 
 5. COVENANTS IN CONDITIONS PRECEDENT. 203 
 
 contrary^ claimed the 1^750/., and compensation in damages for uot Chap. 1. 
 
 being furnished with a homeward cargo. It was held that he was not 
 
 entitled to the 1/750/., because he had not delivered the outward cargo 
 to the merchants^ but that he was entitled to a compensation for the 
 loss of the homeward cargo — the delivery of the outward cargo not 
 being a condition precedent to his right to the homeward cargo. " The 
 covenant from the freighters/^ said Lord Ellexborough, "contains 
 no words which import to make the delivery of the outward cargo a 
 condition precedent : they covenant generallj'-, and without qualifica- 
 tion, that at Naples or Gallipoli they would find and provide, as they 
 did thereby warrant and assure to the owner, a full and complete 
 cargo. It is contended, however, that from the wording of the 
 owner's coA'enant this condition precedent is to be implied; but it 
 does not appear to us that the words ' having so done ' would have 
 been any excuse to the plaintiff for not taking in the cargo ; and 
 admitting that they would, it by no means follows that they would 
 afford one to the defendants. The words seem rather intended to 
 mark the time when the plaintifi'^s obligation to receive a homeward 
 cargo should attach — viz., when his ship, from being clear of one 
 cargo, should be in a condition to receive another ; and they are 
 unaccompanied with those express words of condition which would 
 naturally have been used, had there been any intention of giving the 
 plaintiff an option of terminating the contract and refusing a home- 
 ward cargo, if he should have been prevented by any accident from 
 delivering the outward cargo " {d) . 
 
 By charter-party between the shipowners and freighters, the ship- 
 owners covenanted to take on board six pipes of brandy at Havre, and 
 to proceed therewith to Terceira, and there take on board a cargo of 
 fruit, or other goods, as the freighters might think fit, and proceed 
 to London or Bristol, as might be ordered by the freighters, and there 
 make a right and true delivery of the fruit. The freighters covenanted 
 to pay certain freight for the fruit and the brandy (the freight of the 
 brandy to be taken out in fruit in Terceira), and guaranteed the ship 
 a full home cargo. Upon this charter-party, the Court of Common 
 Pleas determined that the covenant to take the brandy to Terceira 
 was not a condition precedent, but an independent covenant ; and, 
 therefore (the owners, in an action of covenant against the freighters, 
 for not having put a full cargo of fruit on board at Terceira, having 
 averred general performance)^ the declaration was held good on special 
 demurrer. Dallas, C. J., said, " The covenant here goes only to a 
 part of the consideration ; the breach of it may be paid in damages, 
 and the remedy of the defendants is, therefore, by action. The doc- 
 trine in Boone v. Eyre, on which this last proposition is founded, has 
 all the weight which some of the greatest names in Westminster Hall 
 can give it. That doctrine was laid down by Lord Mansfield. It 
 was next recognized by Lord Loughborough, and formed the ground 
 of the determination of the Court of Common Pleas in the case of the 
 
 (rf) Storer x. Gordon, 3 IL & S. 308.
 
 204 CONTEACT OP AFFREIGHTMENT BY CHARTER-PARTY. 
 
 Part IV. Duke of St. Alban's v. Shoie. It was then sanctioned by Lord 
 Kenyon, and the rest of the Court of King's Bench in the 
 case of Campbell v. Jones, and was afterwards eulogized by Lord 
 EllenborougHj in delivering the judgment of the court in Havelock v. 
 Gedcles" (a). 
 
 The merchant^ however, may, if he thinks proper, make any stipu- 
 lation, such as the arrival of the ship by a particular time, or even the 
 arrival of another ship, a condition precedent to the performance of 
 his covenants in the charter-party by special and particular proviso — 
 and this is the proper method to be adopted in order to give effect to 
 such an intention. 
 
 " The rule,'^ said Tindal, C. J., '' has been established by a long 
 series of decisions in modern times, that the question whether cove- 
 nants are to be held dependent or independent of each other is to be 
 determined by the intention and meaning of the parties as it appears 
 on the instrument, and by the application of common sense to each 
 particular case, to which intention, when once discovered, all technical 
 terms of expression must give way. The parties may, undoubtedly, 
 if they think proper, agree that the captain^s right to recover any 
 remuneration for his services shall be conditional only, and shall 
 depend on his strict performance of the covenants he enters into ; 
 and if words are used in the contract so precise, express, and strong, 
 that such intention only is compatible with the terms employed, how- 
 ever inconsistent it may be with the general principles of reasoning, 
 a court can only give effect to such declared intention of the parties. 
 The only question in every particular case is, whether such intention 
 is so declared '' (b) . 
 
 Thus, in Sliaclforth v. Higgins (c), where a ship was freighted to 
 go in ballast to Jamaica, and bring home a cargo from thence, and 
 the freigliter undertook to provide a fidl cargo for her in time for the 
 July convo}^ provided she arrived in Jamaica by the 2oth day of June, 
 but the vessel did not arrive till some days afterwards ; it was held 
 that the ship^s arrival within the time so fixed was a condition pre- 
 cedent to the merchant freighter's liability, on his contract to furnish 
 a cargo. 
 
 And where by a charter-party it was agreed that a vessel should 
 proceed to Trieste, and there load a full cargo of wheat, and being so 
 loaded should therewith proceed to a port in the United Kingdom, 
 " the vessel to sail from England on or before the 4th of February 
 then next ; " in an action by the owners against the merchant for not 
 providing a cargo at Trieste, the sailing of the vessel from England 
 
 (a) Fotliergill v. Walton, 8 Tauut. 516. in which the master's contract to receive 
 Deffell V. BrocMebanJc, 4 Price, 36 ; aucl all lawful goods, and to attend daily at the 
 Piist V. Doieie, 32 L. J. Q. B. 179. broker's office, to sign bills of lading, were 
 
 (b) Per Tindal, C. J., Stavers v. Curl- held to be independent covenants and not 
 ing, 3 Bing. N. C. 355. Seager v. Duthie, conditions precedent to his right to sue for 
 8 C. B. (N.s.) 45 ; 29 L. J. C. P. 253. freight under the charter-party. 
 Cranston v. Marshall, 30 L. J. Exch. 85, (c) 3 Campb. 385.
 
 5. COVENANTS IN — CONDITIONS PEECEDENT. 205 
 
 on or before tlie day named was held to be a condition precedent (d). Chap. 1. 
 
 But where the day fixed had gone by at the date of the signature of 
 
 the charter-party, a similar stipulation was held to be nugatory, and 
 effect was given to the remainder of the contract (e) . A provision in 
 a charter-party, that a ship " guaranteed to sail in all June/^ should be 
 '' ready to receive cargo in all May/' has been held to be a condition 
 precedent (/) ; but a mere representation, at the time of making the 
 charter-party, that the ship is at a particular place, will not amount 
 to a warranty (g). The description of a ship in a charter-party, as 
 A. 1, has been held not to be a continuing warranty, and to be satis- 
 fied by her being so at the date of the charter-party (h) . 
 
 Questions have frequently arisen as to the performance of stipula- Stipulations 
 
 tions in charter-parties respecting the time for the departure of ships ^^ *° *""^ ^°^' 
 n , ^ departure of 
 
 from port. .i^lj^ from 
 
 The words, " final sailing of the vessel from her port of loading/-* port. 
 in a charter-party, were held to mean her final passing from the 
 limits of an artificial canal, in which she was liable to be stopped by 
 the harbour-master, and her being at sea, ready to proceed on her 
 voyage, and not merely having her clearances on board and being ready 
 to sail (i) ; and the words " leaving Amsterdam not later than all 
 March,'' were considered not to mean " sail on her voyage from 
 Amsterdam,^' and to be satisfied by the ship's leaving Amsterdam 
 harbour on the 30th March, with a portion only of her ballast and 
 crew, as was customary with ships of her burthen, and completing 
 them in the course of her passage through the North Holland canal, 
 sixty miles in length, to Nieuve Diep, whence she finally sailed in 
 April {k). 
 
 Where a vessel crossed the bar, and anchored outside the harbour 
 in the roads, with the intention of sailing on her voyage after com- 
 pleting her crew there and putting her shrouds and cables in a 
 proper condition, and she was lost on the night of the day she cast 
 anchor, and before her bills of lading were signed, it was held that 
 she had not sailed from port [1). 
 
 So where the vessel, being loaded and in a fit state for sea, but 
 before her clearances had been completed or bills of lading signed, 
 left Sunderland harbour with the captain on board and crossed the 
 bar, and the captain returned on shore to complete the clearing, 
 obtain the consular papers, and sign the bills of lading, and it was 
 found that the ship returned to harbour and did not afterwards sail, 
 it was held that she had not sailed {m). 
 
 (d) Glaholm v. Mai/es, 2 Scott, N. R. (i) Soelandts v, Sarrison, 9Ex. 441', 23 
 47 ; Croockeioit v. Fletcher, 1 H. & N. 183 ; L. J. Ex. 169. 
 
 26 L. J. Exch. 152. (k) Van Baggen v. Baines, 9 Ex. 523 ; 
 
 (e) Hall V. Cazenove, 4 East, 477. 23 L. J. Ex. 169. 
 
 (/) Oliver v. Fielden, 4 Exch. 135. (/) Thompson v. Gilhspi/, 5 E. & B. 
 
 Ig) miiott V. Von Glehn, 13 Q. B. 632. 209. 
 
 (A) Siirst V. Osborne, 18 C. P. 144; 25 (m) Hudson v. Bilton, 6 E. & B. 565 j 
 
 L. J. C. P. 209 ; Routh v. McMellon, 33 26 L. J. Q. B, 27. 
 L. J. Ex. 38. Frenchv, Newgaas, 47 L. J. 
 C. P. 361.
 
 206 CONTRACT OF AFFEEIGHTMENT BY CHAETEE-PAETY. 
 
 Part IV. And -oliere an insurance was effected on the freight and goods of a 
 
 sliip named " at and from Portnenf to London, warranted to sail on 
 
 or before tlie 28th of October/^ and tlie ship quitted Portnenf on 
 the 26th with a full cargo but an incomplete crew, and dropping 
 down the St. Lawrence, ari'ived on the 28th at Quebec, which 
 is the nearest place at which her clearances could be obtained, 
 and only obtained them and completed her crew on the 29th, leaving 
 Quebec on the 30th, it was held that she had not complied with the 
 warranty («). 
 
 But where in assumpsit on a policy of insurance on a ship " war- 
 ranted not to sail for British North America after the 15th of 
 August,'^ it was proved that the ship, being ready for sea in Dublin 
 harbour on the 15th of August, but unable to sail down the Liffey 
 in consequence of an adverse wind, was on that day hauled out of 
 dock and warped down the river till the tide ebbed, leaving her 
 aground, and that on the next day she was warped farther down 
 the river, and put to sea, the wind shifting, on the 17th, and the 
 jury found that the master was proceeding down the river, not merely 
 to save the warranty but with the intention of placing the vessel in a 
 more favourable position for her voyage, knowing, however, at the 
 time when she left the dock that it would be impossible to get to 
 sea that day, it was held that the warranty had been complied with, 
 it being a warranty to sail for a particular place^ and not a warranty 
 to sail from a particular port ib) . 
 
 Th^ rule to be drawn from a consideration of these cases seems to 
 be, that if the ship quits her moorings ready for sea, with a bond fide 
 intention on the part of her master to prosecute the voyage at the 
 specified time, she complies with the warranty, although an unfore- 
 seen event may retard her farther progress (c) . 
 
 In the case of Behn v. Burners [d), an action brought by the 
 owner of the ship Martaban against the charterer for not having 
 supplied a cargo for her at Amsterdam to be conveyed to Newport, 
 pursuant to his contract by charter-party of the 1 9th of October, the 
 defendant pleaded that the ship was therein described as " now in 
 the port of Amsterdam,'^ that the fact of her being so was an 
 essential and material part of the contract, and that she was not 
 there on that day. The ship did not, in fact, arrive at Amsterdam 
 until the 23rd of October, and the Court of Queen's Bench, in 
 determining the question whether the words on which the plea was 
 founded were mere description or a warranty, was perplexed by the 
 conflict between two cases, — OUive v. Booker (e), in which it had 
 
 (a) Redsdalev. Xeicnham, 4 Campb. Ill; & Ad. 1011. J]roii:n v. TayJenr, 4 A. & E. 
 
 3 M. & S. 455, S. C. 248. Sharpe v. Gibbs, 1 H. & N. 801. 
 
 (b) Cochrane v. Fisher, 1 Cr. M. & E. General Steam JS'av. Co. v. Sapper, 11 
 809. C. B. (n.s.) 493 ; 31 L. J. C. P. 185. 
 
 (c) Moir V. Hot/al Exchange Ass. Co., (d) 1 B. i S. 877 ; 31 L. J. Q. B. 73 ; 
 
 4 Campb. 34. Petiegreio v. Fringle, S. C. Ex. Ch. 3 B. & S. 751 ; 32 L. J. Q. B. 
 3 B. & Ad. 514. Lang v. Anderdon, 204. 
 
 3 B. & C. 495. Graham v. Barras, 5 B. (e) 1 Ex. 416.
 
 5. COVENANTS IN — CONDITIONS PEECEDENT, 207 
 
 been decided by the Court of Exchequer that the words "now Chap. 1. 
 at sea^ having sailed three weeks or thereabouts/^ amounted to a 
 condition; Dbneck v. Corlett {f), in which the words ''now at 
 anchor in this port," the ship being there at the time in a dry 
 dock, under process of coppering, had been hekl by the Judicial 
 Committee of Privy Council to be mere misdescription, and no excuse 
 for the non-performance of his contract by the charterer. To a 
 majority of the court it seemed best to adjudicate in conformity with 
 the latter, because it was the later decision, and that course, with a 
 suggestion from the chief justice that the case should be taken to a 
 court of error, was, disseniiente Wight.man, J., adopted. In the 
 Court of Exchequer Chamber it was considered that the opinion of 
 that learned judge should have prevailed ; that Dimeck v. Corlett was 
 exceptional in its facts and circumstances, and Ollive v. Booker the 
 more generally applicable, the more reliable and safer case. 
 
 The principle to be attended to in the determination of such ques- Further oWr- 
 tions, before anything has been done under a contract, is that vatlons as to 
 stated in the first lines of this section to have been laid down by Lord "-'o'l^it'ons 
 Ellenborough. Where some substantial benefit has been had under 
 the contract by one of the parties to it, he is no longer in a position 
 to avail himself of the point that a stipulation not performed by the 
 other party was intended to be a condition precedent. Exceptional 
 cases, '' immersed," like Dimeck v. Corlett, ''in their specific facts," 
 and not easily brought into line, will occasionally occur. But it s, 
 
 seems to result from the final judgment in the case of Behn v. Burness, 
 and from the judgments in other cases to which it refers, that where 
 stipulations as to time or place are couched in language of a pliant 
 and elastic character, such as to admit of extension according to cir- 
 cumstances and discretion, without departing from the purpose of the 
 contract, they are not to be considered as conditions precedent [g) ; 
 that Avhen the language employed is precise and positive, such as 
 admits of no latitude of interpretation, no room for discretion, no 
 uncertainty as to its exact operation if strictly complied with, they 
 are to be considered as conditions precedent {h) ; and that as respects 
 stipulations descriptive of the subject-matter of the contract, its 
 plight, class, or position, the question whether the strict performance 
 of them by one party be a condition precedent to the obligation of 
 performance by the other party, depends upon the consideration 
 whether, regard being had to the language of the contract and the 
 circumstances in which it was made, the stipulation, on the non- 
 performance of which the dispute arises, was in the estimate and 
 
 (/) 12 Moore, P. C. C. 199. (A) Shadforth v. Biggins, 3 Campb. 385. 
 
 {g) Puller v. Stainforth, 11 East, 232, Glaholm v. Ilages, 2 M. & G. 257. Ollive v. 
 
 ante, p. 196. Constable v. Cloberie, Palmer, Booker, 1 Excli. 416. Oliver v. Fielden, 
 
 397, ante, p. 189. Bornmann v. TooJce, 1 4 Exch. 135. Cranston v. Marshall, 5 
 
 Campb. 377. Freeman v. Taylor, 8 Biiig. Exch. 395. Croockewit v. Fletcher, 1 H. 
 
 124. Tarrahochia v. mdcie, 1 H. & N. 183. & N. 893. Seeger v. Dtithie, 8 C. B. (n.s.) 
 
 Clipsham v. Vertue, 5 Q. B. 265. 45.
 
 208 CONTRACT OF AFFEEIGHTMENT BY CHARTEl-PAETY. 
 
 Part IV, intention of the parties, with reference to the scope and object of the 
 contract, and its probable success or failure, a substantive part of it, 
 or merely a representation collateral to it (a) . 
 
 The master of a vessel (b) covenanted by a charter-party that he 
 would directly, as wind and weather would permit, after the discharge 
 of his cargo at Madeira, proceed to Winyaw, in South Carolina, or as 
 near thereto as he could safely get, and there stay forty running days 
 from the time of such arrival, if not sooner despatched, and load his 
 ship with such rice and other goods as the merchant's agents should 
 tender to be laden; in consideration whereof, the merchant agreed to 
 pay him freight at the rate of 4/. 10s. per ton for every ton delivered 
 at the port of London, and also cwo third parts of port-charges, 
 pilotage, &c. The charter-party contained the following proviso : — 
 " That if the said ship should not have arrived at Winyaw aforesaid 
 by the 1st day of March next ensuing the date of the said charter- 
 party, then and in such case it should be in the option of the 
 merchant, his factors or assigns, on the said ship's arrival at Winyaw, 
 either to load the said ship on the terms aforesaid or not, at the then 
 current freight given to ships loading at Winyaw for the voyage 
 aforesaid, or to refuse the said ship entirely ; so always that such the 
 intention of the said mei'chant, his factors or assigns, was declared to 
 the master of the said ship within forty-eight hours after his applica- 
 tion to the factors or assigns of the said merchant at Winyaw." On 
 this charter-party the merchant brought his action ; alleging, first, 
 that the ship did not sail and proceed to Winyaw, but that the 
 master (the defendant) wilfully absented himself therefrom. The 
 master pleaded that he did proceed with all convenient speed and 
 sail to the island of Madeira, but by reason of contrary winds and 
 bad weather, and from no other cause, was prevented from arriving 
 there till the 16th of February, so that it was impossible for him to 
 discharge his outward-bound cargo at Madeira, and after such dis- 
 charge to ari'ive at W^inyaw by the 1st of March, the facts of which 
 plea the plaintiff admitted to be true ; and the question therefore was. 
 Whether or not, as the merchant had his option to load the ship or 
 not, in the event of her arrival at Winyaw after the 1st of March, the 
 master, having been unavoidably delayed in the previous voyage by 
 no fault of his own, so as to render his arrival at Winyaw by that 
 time impossible, was bound to sail thither on the chance of the mer- 
 chant's choosing to give him a freight when he should happen to 
 arrive ? The court held that, by the terms of the charter-party, the 
 master had bound himself to do so, and Lord Mansfikld said, ^' The 
 plaintiff wanted a ship at Winyaw, in Carolina, to load with rice, and 
 therefore he covenanted with the defendant to freight the ship there, 
 and the defendant covenants absolutely to go thither ; and in order to 
 quicken the ship's arrival, there is a pro^dso, that if he gets there by 
 the 1st of March he is to be certain of a freight ; but if he does not 
 arrive there before the 1 st of March, then the plaintiff was to declare 
 
 (a) Sehn v. JBuniess, in eiTor, 3 B. & S. (b) Slmhrick v. Salmond, 3 Buit, 1637. 
 
 75X.
 
 • 5. COVENANTS IN — CONDITIONS PEECEDENT. 209 
 
 in forty-eight hours Avhether he would freight the ship or uot. The Chap. 1. 
 
 defendant^ therefore, thereby became the insurer of the risk of his 
 
 getting there before the 1st of March^ in which event he was sure of 
 a freight ; but still he had a general chance of getting a freight, even 
 though he should not arrive till after that time. The words are 
 positive and express that he should go thither. The parties plainly 
 meant that the ship was to go thither, and the consideration fails by 
 his not going." 
 
 Another charter-party {c), wdiereby it is agreed that the vessel 
 should sail for Sydney, in New South Wales, wdiere, having discharged 
 her cargo, she should proceed to some port on the coast of Malabar, 
 and there take in a home cargo from the freighter's agents, with the 
 usual covenant on the part of the freighter to load a full cargo and to 
 pay freight at a certain rate, contained a further proviso, '' That in 
 case the vessel should not be arrived at her port of lading, and be 
 ready to take in cargo on or before the 28th day of November, unless 
 she should have been prevented by stress of weather, or other unavoid- 
 able impediment, then it should be at the option of the freighter to 
 load her with the home cargo or not, as he might think proper." The 
 vessel not having arrived at the port of loading on the Malabar coast 
 until some time in the month of January, the freighter refused to put 
 a cargo on board ; and an action being brought against him by the 
 owner for the breach of his covenant in this respect, the question 
 raised by the pleading was. Whether, in the words of the exception 
 to the proviso, the vessel had been prevented from arriving by stress 
 of weather or other unavoidable impediment ? A verdict was found 
 for the defendant, and Tindal, C. J., directed the jury, '' that 
 although the words ' unavoidable impediment ' imported primarily 
 something of the vis major, yet, in their present application, they 
 might be fairly considered as denoting such an obstruction as a man 
 could not by any reasonable degree of foresight have prevented, and 
 did not therefore demand from the owner or master greater efforts 
 than were usual, and in the ordinary course." 
 
 The ship St. Patrick {d) was chartered to sail from London, in 
 ballast, to Cadiz, to remain there fifteen days, and thence proceed to 
 Guyaquil or elsewhere as directed ; there to lay one hundred and 
 twenty running days for cargo ; and the charterers agreed that at 
 such port of destination they would send alongside the vessel all such 
 lawful goods as they might think proper to ship, and despatch her to 
 her home port. A proviso was added, " That in the event of the 
 non-arrival of the ship or vessel called the Grant, Hogarth, master 
 (chartered, and then on her voyage to St. Clas de California), at that 
 port, then in such case that charter-party and every clause of agree- 
 ment therein contained should, in case no shipment should have been 
 made under it, cease, determine, and be utterly void to all intents 
 and purposes whatsoever." The Grant did arrive at her outport, but 
 
 (e) Chranger v. Bent, Lloyd & Welsby, {d) Soames v. Lonergan, 2 B. & C. 564. 
 
 Mer. Cases, 270.
 
 210 CONTEACT OF AFFEEIGHTMENT BY CHAETER-PAKTY. 
 
 Part IV. not imtil long after the expiration o£ her lay days ; no cargo was 
 
 furnished to the St. Patrick, and an action being brought by the 
 
 owner, it was held that giving to the terms of the proviso a fair and 
 reasonable interpretation, the charterers were released from their 
 engagements, and that the action could not be sustained. Lord 
 Texierden said, "I left it lo the jury to say, whether the delay of 
 the Grant had been occasioned by tlie default of the defendants? 
 and observed, that if it had, her non-ari-ival would not be a sufficient 
 answer to the action. The next point is, the construction of the 
 charter-party. My opinion was, that it meant such an arrival of the 
 Grant as would answer the purposes of the parties to tlie charter- 
 party. It is said that the only limit is arrival in the course of that 
 voyage, but that might be so late as not to answer the purposes 
 plainly designated by this instrument. Looking at that instrument 
 alone,' I still think as before, that the arrival of the Grant, in order 
 to satisfy the proviso, should have been within the running days, or 
 the twenty additional days, during which the ship might be detained 
 on demurrage, if the captain was required to wait so long." 
 
 6. Evidence of Usage of Trade ivhen admitted in the Interpretation of 
 
 Charter-Pur ties. 
 
 The construction of charter-parties, as of other mercantile con- 
 tracts, shall be conformable to the usage of trade in general, and of 
 the particular trade to which they relate. 
 
 By this rule it is not to be nnderstood that a commercial usage, 
 however well established, can be of efficacy to add to, vary, or defeat 
 the essential provisions of a contract, or the plain meaning expressed 
 by the parties to it, but that on points respecting which the 
 language employed by them is ambiguous, or respecting which they 
 have been silent, proof of a course and practice of trade, which must 
 have been known to them, may be received, as a means of discovering 
 their real intention («). The law presumes, in such cases, that they 
 did not mean to commit to writing the whole of the contract by 
 which they intended to be bound, bat to contract on the under- 
 standing that known usages [b] might be imported into their agree- 
 
 (rt) Palmer v. Blctclhurne, 3 Bing. 61. matters with respect to which they are 
 Magee v. Aikinson, 2 M. & \V. 440. Spar- silent, but such evidence is only receivable 
 tali V. Benecke, 10 C. B. 212. Mallan v. when the incident which it is sought to 
 Maif, 13 M. & W. 517. Cockburn v. Alex- import into the contract is consistent with 
 ander, 6 C. B. 791. Brown v. Bqrne, it. Inconsistency may be evinced by the 
 3 E. & B. 703. Siiers v. Jones, 2 Ex. 111. express terms of the written instrument or 
 Humfrei) v. Bale, 7 E. & B. 266 ; 26 by implication therefrom. See notes to 
 L. J Q. B 140. Culhbert v. Cumming, 11 Wigglesworth v. Dallison, 1 Smith s Lead- 
 Ex. 4u5 ; 24 L. J. Ex. 198. Extrinsic ing Cases. 
 
 evidence of custom and usage is admissible (6) Davidion v. Girynne, 12 East, 381. 
 
 to aunex incidents to written contracts in Tindall v. Taylor, 4 E. & B. 219.
 
 6. EVIDENCE OF USAGE OF TRADE. 211 
 
 raent to explain what its terms had left doubtful, and to effect Chap. 1. 
 their object where it had not been expressed (c). Particular words 
 also may have generally acquired, in respect of the subject-matter 
 of the contract, a peculiar sense, distinct from their plain, ordinary-, 
 and popular sense, and evidence of this conventional meaning is 
 receivable, to effectuate the immediate intention of the parties by 
 whom they have been employed [d]. 
 
 [Accordingly, where at the trial before Lord Kenyon of an action 
 on a charter-party, by which it was stipulated that the merchant 
 should have the exclusive use of the ship outwards, and the 
 exclusive privilege of the cabin, the master not being allowed to 
 take any passengers, the defendants insisted that under a charter- 
 party so worded it was the constant usage of trade to allow the 
 master to take out a few articles for private trade; his lordship 
 suffered evidence to be given to prove this usage, observing, that 
 although 2i'>'ima facie the deed excluded this privilege, he thought it 
 might be explained by uniform and constant usage, the usage being 
 a tacit exception out of the deed [e) . 
 
 By a charter-party the merchant covenanted to furnish a full 
 cargo at Charles Town or New Orleans, at his option, for which 
 freight was to be paid, if the goods were shipped at New Orleans, for 
 cotton, in round bales, 3f/. per pound, and in square bales, 2^^. per 
 pound; and for rice, of wdiich he was at liberty to load not more than 
 one hundred and fifty tons, 8/. 8*. per ton. The ship did not obtain 
 a cargo at Charles Town, and was ordered to New Orleans. It was 
 the established and uniform practice of the latter place, though not 
 of Charles Town, to re-compress, by means of steam-engines, all 
 cotton intended for exportation, unless the ship was unable to get a 
 full cargo; the merchant loaded the ship with cotton only, of which, 
 if re-compressed, the ship would have contained one hundred and 
 seventy tons above the cargo actually shipped. The quantity actually 
 shipped was not a sufficient cargo, even of bales not re-compressed,^ 
 and the merchant was held liable to pay the value of the freight of 
 the additional one huudred and seventy tons, and without any allow^- 
 ance in respect of the lower rate of freight for rice. Rice, if laden, 
 must have been put into the ship before cotton, and therefore the 
 merchant was considered to have elected to furnish an entire cargo of 
 cotton (/).] 
 
 (e) Semper in stipulationibxisft in coeteris Mich. Term, 29 Gen. 3. Upon the evidence, 
 
 contractibui id sequimur quod uctvm est, his lordship thought the usage was proved, 
 
 aut si Hon pareat, quid actvm est, erit con- and eleven of the jur.ymen wished to f nd a 
 
 sequens, ut id sequamur, quod in regione verdict accordingly ; but the twelfth, ia- 
 
 in qua actum est frequentatur. Dig. 50, sisiing that he could not conform to the 
 
 17, 34. See Graves v. Legg, 2 H. & N. general opinion, as this was a positive con- 
 
 210; 26 L. J. Ex. 316, Ex. Ch. tract, a juror was withdrawn by consent, 
 
 (i) Robertson v. French, 4 East, 130. and no verdict pronounced in the cause. 
 
 See Leiois v. Marshall, 8 Sco t, N. K. 487. See Anderson v Pitcher, 2 B. & P. 164; 
 
 Smith V. Bland, Hy. & M. 260. Eutchin- 2 Ves. 331.] 
 
 son V. Bowker, 5 M. & W. 535. Smith v. (/) \_Bensonv. Schneider,! T&xmt. 272 j 
 
 Thompson, 8 C. B. 44. 1 Moore, 21.] Hapies v. Hallidai/,7 Bing. 
 
 (e) IDonaldson v. Foster, Guild. Sit. 587. 
 
 p 2
 
 212 COXTEAC-T OF AFFKEIGHTMEXT BY CHAETEK-PABTY. 
 
 Part IV. Where a charterer of a ship engaged to pay a certain sum per diem 
 "~" for her detention at Algiers, to reckon from the time of her being 
 ready to unload and in turn to deliver, it was held that evidence was 
 admissible to show that these words had, by the usage of the par- 
 ticular trade, acquired a known meaning, but that the testimony of 
 three or four witnesses, speaking to a course of business that had 
 only grown up within about five years, and with reference to charter- 
 parties, the language of which was not identical with that of the 
 charter-party in question, was insufficient to establish such general 
 usage (a) . So evidence was admitted to show that the words " regu- 
 lar turns of loading" had obtained by usage at the particular port, in 
 respect of an article not aflPected by any statutory regulation, the 
 same meaning as in respect of an article the loading of which by 
 turr s was regulated by Act of Parliament {b) . 
 
 By a charter-party, made at Riga, the plaintiff's ship was to 
 proceed, with a cargo of timber, to Liverpool, and to deliver at such 
 dock there as ordered on arrival. On arrival at Liverpool the ship 
 duly entered into dock, but in consequence of the crowded state of 
 the' dock, was unable for some days to obtain a berth alongside of 
 the quay from which she was allowed to discharge. — Held, that in an 
 action for demurrage evidence was admissible tending to show that, 
 by the custom of the port of arrival, timber ships were not con- 
 sidered to have arrived until they had obtained a discharging berth 
 within the dock (c) . 
 
 But evidence that by the custom of a particular port a ship was 
 bound to wait its turn to load until the customers of a certain coke 
 manufacturer, whose names were entered in a list or turn book kept 
 by him, had loaded, provided reasonable despatch was used, was held, 
 in an action against the shipowner for not loading in regular turn, 
 inadmissible to control or qualify a clause by which he had agreed 
 that the ship should, with all convenient despatch, load in the cus- 
 tomary manner {d) . 
 
 Where a charterer agreed to load a vessel when it arrived at a 
 certain port with a cargo of coals in a customary manner, on a 
 question whether he had done so in a reasonable time, it was held 
 that the jury had been properly directed not to take into consideration 
 a delay occasioned by a strike among colliers, and a dispute with a 
 railway company along whose line the coal had to be brought to the 
 port of shipment, these matters not being in the contemplation of 
 either party when the contract was made (e) . 
 
 But in an action on a charter-party by the master of a ship for 
 
 (rt) Eohertson v. Jaclcson, 2 C. B. 413. [d) Hudson v. Clementson, 18 C. B. 213. 
 
 {b) Schultz V. Leidemann, 14 C. B. 38 ; (e) Adams v. Roual Mail Steam Packet 
 
 23 L. J. C. P. 17. See post, Chap. 3 of Co., 28 L. J. C. P. 33. Bumfrey v. Bale, 
 
 this part. 26 L. J. Q. B. 140; and Cuthbek v. Cum- 
 
 (c) The Steam Slap Co., Xordenv. Demp- ming, 11 Ex. 405. 
 sey, 43 L. J. C. P. 764; L. R. 1 C. P. D. 
 654.
 
 6. EVIDENCE or USAGE OE TRADE. 213 
 
 not loading in a reasonable time, the delay complained of having Chap. I, 
 been caused by an accident to tlie steam-engine of a colliery, by which 
 accident it was known to both parties at the time of their contract 
 that some delay would be caused, it was held that if the colliery got 
 ^0 work within a reasonable time, and the vessel was loaded within a 
 reasonable time after, the charterers were not liable (e) . 
 
 By a charter-party the merchant engaged to pay 4/. 155. per ton for 
 goods shipped at Bombay for London, cotton to be calculated at fifty 
 cubic feet j^Gt' ton. In an action brought by the shipowner it was held, 
 that evidence was admissible for the defendant of a usage to pay 
 according to the measurement taken at Bombay before the goods were 
 loaded ; but that, in answer to it, the plaintiff Avas at liberty to prove 
 that the master had objected to receive the goods at the Bombay 
 measurement, measured them himself on board, and delivered an 
 account of that measurement to the shippers (/) . Evidence had also 
 been offered at the trial of a bill of lading delivered to the shippers, 
 stating the measurement on board as well as the measurement at the 
 screw, but the learned judge Avas of opinion that this should have 
 formed part of the original case. 
 
 " With respect," said Tindal, C. J., "to the evidence tendered by 
 the plaintiff in the Avay of reply, we think such evidence ought to 
 have been received ; for, as it appears to us, the evidence tendered 
 had a direct bearing upon the point, whether the usage set up was a 
 reasonable usage or not. Evidence of the extent of the difference 
 between measurement on the merchant's premises and measurement 
 at the time of shipment, might be material to enable the judge to 
 form his opinion upon the reasonableness of the usage ; and if the 
 usage should appear to be in a high degree unreasonable on this 
 account, such evidence might also have weight Avith the jury, on the 
 question Avhether the usage did or did not exist in fact." 
 
 A person avIio had engaged a passage in a ship advertised to sail on 
 a particular day, and refused to go Avith her after that day, Avas, on 
 ]n'oof of a usage that in such cases half the passage money becomes 
 forfeited, held liable to that extent [g). 
 
 Where proof was given that by the custom of a port three months 
 interest and discount is deducted from freights payable under bills of 
 lading on goods coming from certain ports, it was held in an action 
 by the shipowner to recoA-er the full freight under a bill of lading, 
 '' he or they paying freight for the said goods five-eighths of a penny 
 sterling per pound, five per cent, primage and average accustomed/^ 
 that the contract in the bill of lading was qualified by the local 
 usage (A) . 
 
 (e) Norris v. Dresser, 9 Ex. 485 j 23 (g) Yates v. Duff', 5 C. & P. 369. 
 
 L. J. Ex. 210. {h) Brown v. Bi/riie, 3 E. & B. 703 
 
 (/) Bottomley v. Forhes, 5 Bing. N. C. 23 L. J. Q. B. 313. 
 121 J 6 Scotfc, 866* See Gould v. Oliver ^ 
 2 Scott, N. C. 211 s
 
 214 CONTKACT or AFFEEIGHTMENT BY CHAETEE-PAETY — 
 
 Part IV. So a custom to allow discount on freight proved to have been 
 established in all the ports of North and South America, but not of 
 Central America, was held incorporated in a contract for a voyage 
 from a new state of Central America, which had been lately annexed 
 to the United States [a). 
 
 Evidence was held admissible to prove that by the usage of trade 
 at Trinidad, a stipulation in a charter-party to provide a "full and 
 complete cargo of sugar, molasses "J other produce,^^ was satisfied 
 by providing a full cargo of molasses and sugar, packed in hogsheads 
 and puncheons, with a few tons of other prorluce ; although that 
 mode of packing molasses and sugar left broken stowage, which 
 might have been filled with tierces of sugar, or other small 
 packages {b) ; and proof being given that those articles could be 
 conveyed w tli greater safety in that way, the usage was decided to be 
 a legal and reasonable one. But where a ship was chartered to 
 Hong Kong, ''the ship to be consigned to the charterer's agents 
 there free of commission on that charter,'' a declaration alleging that 
 by the usage of the London and China tra-^e the word consigned 
 imported an engagement on the part of the shipowner that the 
 charterer's agents should be entitled to commission on a return 
 cargo, if procured, whether through their agency or not, was held 
 inadmissible (c). 
 
 In Cuckbnrn v. Alexander {d), there being no ambiguity in the 
 words of the charter-party by which a different rate of freight was 
 stipulated for pressed and unpressed a^ooI, evidence was held in- 
 admissible to show that by the custom of the place of loading the 
 cost of pressing wool was to be borne by the shipowner. 
 
 7. Bills of Lading for Goods shipped under Charter-party . 
 
 [When goods are put on board in pursuance of a charter-party, 
 the master is to sign for them bills of lading to the effect mentioned 
 in the fourth chapter of this part, the charter-party being the instru- 
 ment and evidence of the contract for the conveyraice, and the bill 
 of lading the evidence of the shipping of the particular merchandise, 
 to be convoyed in pursuance of the contract. But the master cannot 
 be required to express in the bills of lading a less rate of freight than 
 is mentioned in the charter-party (e) .] 
 
 Where it was agreed by charter-party that the ship should be at 
 the disposal and direction of the merchant, that the master should 
 
 {n) Fallner v. i:arle, 3 B. & S. 360 j 32 {c) Phillips v. Briard, H. & N. 26 j 25 
 
 L. J. Q. B 134, L. J. Ex. 233. 
 
 (i) Cidhbert V. Cumming, 11 Ex. C. {d) 6 C. B. 791, ante, p. 193. 
 
 405, 553, and 3 W. E„ Q. B. 471. \e) Mi/de v. Willis, 3 Carnpb. 202,
 
 7. BILLS OF LADING FOE GOODS SHIPPED UNDER. 215 
 
 receive a cargo at London, and proceed therewith to any port or ports Chap. 1. 
 
 in Spain and Portugal, or either, as he should be ordered by the 
 
 merchant, and there deliver the cargo agreeably to the bills of lading 
 that should have been signed for the same ; the merchant having 
 loaded the ship for Lisbon, and the master signed bills of lading 
 for delivery there — it was held that the merchant could not change 
 the destination and send the ship to Gibraltar, without giving up tue 
 bills of lading to the master, or at least offering a sufficient indini- 
 nity against any claims that might be made upon him by the holder 
 thereof (/). 
 
 (/) Dacidsoii v. Gioynne, 12 East, 381.
 
 216 OF THE shipowner's LTEN FOR FREIGHT. 
 
 Part IV. 
 
 CHAPTER II. 
 
 OF THE SHIPOWNER'S LIEN FOR FREIGHT; AND HEREIN, 
 
 Sect. 1. Maritime and French Law on this Subject, p. 216. 
 
 2. Of the Clause in Charter-parties wherehy the Merchant binds the Goods 
 
 p. 217. 
 
 3. Of the Lien for Freight of the Oioncr of a Chartered Shi^}, p. 221. 
 
 4. Of Cases in which the Shij}owner's Lien for Freight has been held to have been 
 
 Limited by him, p. 231. 
 
 5. Cases in\which Questions have arisen as to the Waiver or Meservation bg the 
 
 Owner of his Lien, p. 234. 
 
 6. HemarJcs on the Cases cited, p. 236. 
 
 7. Trovisions of the M. S. Act Amendment Act, 1862, and Customs Act, p. 240. 
 
 1. Maritime and French Law on this Subject. 
 
 By the marine law^ the ship and freight are bound to the perform- 
 ance of the covenants of the shipowner^ and tlie goods to the per- 
 formance of the covenants of the merchant. " Le batel," says 
 Cleirac, " est obJiyc a la marchandise et la marchandise an bateV (a). 
 By the French ordinance it is expressly provided^ " That the ship, 
 with her furniture^ equipment, and apparel, and the cargo, are 
 respectively bound to the performance of the covenants in the 
 charter-party." And this provision is adopted, word for word, in 
 the Code de Commerce. Yaliu informs us that the word ajfectes in 
 this article is to be read affectes par privilege {b). But the right of 
 the merchant who would seek to make this privilege available, ranks 
 low in the order of precedence of privileged claims against the ship ; 
 the legal expenses attending a sale, the demands of pilotage and 
 custody of the vessel, for stowage of furniture and apparel, for 
 repairs at the last port, for the wages of masters and mariners 
 accrued due during the last voyage, for moneys borrowed by the 
 master on his last voyage, for purchase-money of ship, furniture, 
 and stores, remaining unpaid, for sums due to material men, ship- 
 wrights, and lenders on bottomry, before her last departure from 
 port, and for premiums of insurance, being preferred to it. The 
 privilege of the shipowner against the goods for his freight is of a 
 more beneficial character. Under the empire of the ordinance, the 
 master was not entitled to detain the goods in his ship until payment 
 
 {a) Cleirac ou art. 21 of the Jugeineus {h) Valiu, Coin. sur. rOleroii, liv 3, tit. 1, 
 
 d'Olerou : Us et Coutumcs dc la Mer, art. 11. Code de Commerce, ai-t. 191. 
 p. 72.
 
 2. AGREEMENT BINDING GOODS. 217 
 
 of the freight clue upon them, because that would have deprived the chap. 2. 
 consignee of the opportunity of inspecting them, and of ascertaining — 
 if they had been injured by the master's fault; but he was at liberty 
 to stop them in the lighter, on the quay, or in the warehouse ; and if 
 third parties had not previously acquired an interest in them, he 
 might, by a formal demand of the freight within a fortnight of 
 their delivery, preserve his privilege against the .creditors of the 
 consignees. 
 
 By the Code de Commerce (c), these regulations have been modi- 
 fied. The master cannot, it seems, now detain the goods in his ship, 
 but he has a right to insist upon their deposit in a warehouse until 
 his claim for freight is satisfied ; and, within a fortnight after the 
 delivery to the consignee, he may, unless they have passed by sale 
 and transfer to third parties, in which case the maxim, '' Meubles 
 n'ont pas de suite etant en tierce main'' applies, assert his claim upon 
 them in preference to the claims of other creditors. 
 
 Clauses are now usually inserted in French charter-parties by which 
 the contracting parties expressly recognise these dispositions as the 
 basis of their agreement [d). 
 
 2. Of the Clauses in Charter-parties whereby the Merchant 
 binds the Goods. 
 
 In England, also, [it is usual for each of the parties to these con- 
 tracts to bind himself, his heirs, executors, and administrators ; and 
 the owner or master to bind the ship and her freight, and the merchant 
 the cargo to be laden, in a pecuniary penalty for the true perforni- 
 auce of their respective covenants. This is commonly done by a 
 clause at the end of the instrument. Such a clause is not the abso- 
 lute limit of damages on either side. The party may if he thinks 
 fit, ground his action upon the other clauses or covenants, and may 
 in such action recover damages beyond the aiuount of the penalty, if 
 in justice they shall be found to exceed it (e) . On the other hand, if 
 the party sue on such a penal clause, he cannot in eft'ect recover more 
 than the damage actually sustained. 
 
 But although the ship and freight arc by the terms of a charter- 
 party expressed to be bound to the performance of the covenants on 
 the part of the owners or master, and this is conformable to the 
 maritime law; yet (/) there does not appear to be at present any 
 mode of obtaining in this country the benefit of the security of the 
 ship itself in specie for the performance of such a contract made here. 
 
 Never in this country does the clause whereby the merchant binds 
 the cargo give to the owner a lien on the cargo for any payment for 
 which he might not detain it in the absence of such a clause ; so] 
 
 (c) Art. 306. (/) See ante, p. 86 j sec now when the 
 
 {d) Foi-miilaii-e, tit. 6 ; Code de Com- Court of Admiralty lias jm-isdiction in an 
 
 merce, par Kogrou. action in rem, Index Admiraltji 
 (e) Harrison v. Wright, 1-3 East, 343.
 
 218 or THE shipowner's lien for freight. 
 
 Part IV. [that, with us, the clause is wholly inoperative. lu the cases where a 
 lien is allowed, it is not derived from this clause, but either from 
 some general principle of law or some special contract. Where it 
 depends upon the general principle of law, it is confined to the specific 
 chattels, or some part thereof, in respect of which the payment is 
 claimed, and consequently, goods actually brought by a ship cannot 
 be detained for a breach of a covenant to furnish a full cargo ; nor 
 for demurrage («) ; nor for pilotage or port charges, although the 
 freighter may have engaged to pay them [b). A lien may be extended 
 further, or wholly excluded, by particular contracts, or special circum- 
 stances (c).] 
 
 In the case of Birley v. Gladstone, an entire ship was chartered 
 for a voyage out and home, and by the terms of the charter-party 
 the merchant covenanted to pay for the homeward cargo at certain 
 rates per ton, on delivery of the cargo at Liverpool, l)y bills at three 
 months ; to load a full cargo, and to pay demurrage, and he bound 
 the goods to the performance of his covenants. The Court of King's 
 Bench decided that the owner could not detain the goods, either for 
 the freight of such as were put on board, but afterwards relanded by 
 compulsion, or for dead freight, or for demurrage. A bill was after- 
 wards filed in Chancery for the purpose of obtaining a declaration that 
 the shipowners were entitled to a lieu in equity, but the Master of 
 the Rolls, Sir William Grant, dismissed the bill. In the course of 
 his judgment, his Honour said, '^ There can be but one right construc- 
 tion of the clause ; and if it could be said that the Court of Kiug^s 
 Bench had ill construed it, this is not a court of appeal in which their 
 decision can be corrected. It was asked, AYhat effect the clause 
 could have if it gave no lien either in law or equity V A court of 
 equity is not bound to find an equitable effect for a clause, merely 
 because the construction which a court of law has put upon it would 
 leave it inoperative; in truth, it has been copied from foreign charter- 
 parties, with very little consideration of the effect that might be 
 alloAved to it in the laws of this country. I think it very probable, 
 that in other countries it would have the effect of entitling the ship- 
 owner to retain the cargo for every sort of demand that could accrue 
 to him under the charter-party'^ {d). 
 
 Neither can the owner in all cases have the full benefit of this 
 clause, as giving a lien on the cargo for the payment of what is 
 usually denominated /re<^/</. To this purpose, the following case is 
 in point: — [Two persons, who were factors, hired a ship of one Paul, 
 at the rate of 48/. per month, and executed a charter-party, by which 
 the goods to be put on board were made liable to him, and they 
 had power to appoint the master and mariners. Some merchants in] 
 
 (a) Phillips V. Eodie ; Birlei/ v. Ghd- tended to dead freight and demurrage. 
 
 stone, 3 M. & S. 205 ; Gray v. Carr, 40 McLean v. Fleming, L. E. 2 H. L. (Sc.) 
 
 L. J. Q. B. 257. 128. 
 
 {b) Faith V. East India Co., 4 B. «t A. (d) Gladstone v. Birhy, 2 Mer. 401. 
 
 630. Birley v. Gladstone, 3 M. & S, 205. 
 
 (c) A lieu is sometimes by agreement c.\-
 
 2. AGREEMENT BINDING GOODS. 219 
 
 [the West Indies loaded the ship with goods, and allowed the factors Chap. 2. 
 9/. per ton for the carriage. The factors who had thus chartered the 
 ship in their own name became bankrupts. Paul instituted a suit in 
 the Court of Chancery to compel the merchants to pay him for the 
 hire of the ship, insisting that they were liable to do so by reason of 
 this clause in the charter-party. But the Lord Chancellor Hard- 
 wiCKE decided that he should recover of them no more than they had 
 engaged to pay the factors for the freight, and that they were not 
 liable to make up the deficiency to him. His lordship observed, that 
 by the general law the cargo is liable to pay the freight ; but that in 
 this case the 48/. per month was improperly termed the freight of the 
 goods, benig rather the hire of the ship ; that the factors had made 
 an agreement with the master on their account, and not on the part 
 of the merchants, and therefore the merchants were not liable; 
 otherwise they would be in the hardest case imaginable, for they 
 would be liable to any private agreement between the occupier of a 
 ship and the original oAvners of it. " A person,'^ said his lordship, 
 " that lets out a ship to hire, ought to take care that the hirer is a 
 substantial man ; it is his business to look to this ; and if the 
 persons who hire are not competent, the master must suffer his 
 neglect. "Whatever hardship, therefore, there may be on the one 
 hand to the person who lets out to hire, the hardship is much 
 greater on the other side ; and what gives additional weight to the 
 merchant's case is the great convenience this gives to trade iu 
 general " (e).] 
 
 The agreement iu that case between the charterers and the owner 
 appears to have been locatio rei, the lease at a rent of a ship to be 
 manned and navigated by the lessees's servant's. Such formerly were 
 the contracts between the East India Company and the owners of 
 ships taken up by the company for the pui-poses of its trade and 
 government. Where the contract between the owner and employer 
 of a ship is of this character, the question of lien for freight does not 
 arise. The ship is taken out of the owner's possession, like a house 
 let to a tenant, and placed in the possession of the hirer, who, if he 
 choose to use it in the carriage of the goods of other persons, will 
 have the right which the owner so employing it would have had, in 
 the absence of express stipulations restricting it or inconsistent with 
 it, of detaining the goods until the stipulated payment or freight for 
 their carriage was paid to him. 
 
 This contract, locatio navis, the demise of a ship to be manned and 
 employed by the lessee, is not, properly speaking, the contract of 
 charter-party, which is either — 
 
 (1.) Locatio operis traasvehendarum mercium, a contract by the 
 owner or lessee of a ship to carry in it, by his servants, goods 
 to be shipped by another person, leaving the whole or some 
 principal part of the ship vacant^ and at his disposal, for 
 their reception ; or. 
 
 (e) Patil V. Bh'ch, 2 Atk. 621 ; and sec Odams v. Averif, 19 L. T. C. P. 68.
 
 220 OF THE shipowxee's liex foe feeight. 
 
 Part IV. (2.) Locatio navis et operarum mat/istri et nuutarum ad trans- 
 veliendas merces, a contract by tlie owner of a sliip with a 
 person who agrees to take it and its master and mariners 
 into his employment for a voyage or a term, the master to 
 act as the agent of such person within the ordinary scope 
 of a master's authority in contracting with thii'd parties for 
 the carriage of goods. 
 In the first of these modes of chartering a ship — it is obvious that 
 the owner or lessee retains the possession of it, without any diminu- 
 tion of the responsibilities of an owner to the shippers of goods, or 
 the rights of an OA^oier against them, and that as long as he retains 
 the possession of a shipper'^s goods, he has a lien upon them for the 
 freight due for their carriage. 
 
 In the second — the owner's right of lien for freight on the goods 
 carried by his ship, depends upon the question — one occasionally of 
 not a little difficulty — whether he has entirely parted with the posses- 
 sion of his ship («), or retains the possession of it through his servants 
 the master and mariners, whose services he has placed Avitli tlie ship, 
 at the charterer's orders. 
 
 If in possession through them of his ship, he may, without entirely 
 l^arting with his lien, have limited it by express agreement, as respects 
 the goods of third parties, to the amount payable for their carriage 
 under any contract by bill of lading to be made by the master, and 
 such an agreement has, in some cases, upon the principle omnia facta 
 magistri prccstare debet qui eum jrrceposuit, alioquin, contrahentes 
 decipereniur {b), been implied against a shipoAvner in favour of third 
 parties, from the mere fact of the master having been left by him in 
 charge of his ship, and ostensibly in the unfettered exercise of a 
 master's autliority. 
 
 An attentive consideration of the features presented by these two 
 modes of contracting for the use of ships, will greatly facilitate the 
 solution of the frequently recurring question respecting the ship- 
 owner's lien for freight. It will be found, on a careful examination 
 of the numerous cases in which that question has arisen, that the 
 shipowner's lien for the freight of goods carried by his ship, or the 
 hire of his ship employed by another person in the carriage of goods, 
 has always been upheld in its integrity, except when the owner has, 
 by express contract, parted witli the possession of his ship, or allowing 
 the master to act in the double character of agent for him in charge 
 and possession of his ship, and agent of the charterer to enter into 
 contracts with third persons for its employment, expressly or impliedly 
 waived or limited his right of lien. 
 
 (re) Sutton V. Bragg, 7 Taunt. 14, pout, berrg v. Colvin, 1 CI. and F. 283, ante, p. 
 
 p. 221. Fotvlerv. M'Taggart,! East, 5lo; 30. Belcher v. Capper^ 4 M. & G. 502, 
 
 3 East, 390, post, p. 222. Frazer v. Marsh, post, p. 228. 
 
 13 East, 238, ante, p. 27. Vallejo v. {b) See ante, p. 27* and post. 
 Wheeler, Cowp. 143, ante, p. 27. iS'ew-
 
 3. OF dwnee's lien where ship chaeteeed. 221 
 
 Chap. 2. 
 
 3. Of the Lien for Freight of the Oivner of a Chartered Shij), 
 
 [The word lien, in its proper sense in the law o£ England, imports 
 that the party asserting it is in the possession of the thing which he 
 claims to detain. Where there is no possession, actual or construc- 
 tive, there can l)e no lien.] 
 
 The owner of a ship, while he continues in possession of the ship, is 
 in possession also of the goods on board of her, and his right to a lien 
 on them for the freight due in respect of them, whether by charter- 
 party or bill of lading, has never been questioned. He may, if he 
 thinks proper, part with that possession ; he may demise her for a 
 terra, surrender all control over the ship itself, her master and 
 marines, and even relieve himself from responsibility for wages and 
 repairs (c). If he does so, the person to whom he lets the ship, 
 becomes owner pro tempore ; the rights of the absolute owner are 
 suspended, and among them his right of lien for the freight of goods 
 carried by his ship. 
 
 Such a demise can rarely be essential to the useful employment of 
 a ship by her owners. In most cases, that object may be as well 
 attained by the loan of a ship^s use as by an absolute transfer of pos- 
 session : and ships, being of great value, and freights of considerable 
 amount, it would seem, in the words of Lord Tenterden {d), " to 
 be an act of imprudence on the part of a shipowner to enter into a 
 contract which may have the effect of employing his ship for a long 
 time, and at a great expense to himself, without any remuneration, if 
 the person with whom he contracts should happen to fail before the 
 termination of the voyage.^^ Accordingly, except in cases where the 
 intention of the parties to make and take a demise of the ship is 
 clearly to be collected from the terms of their contract, as explained 
 by the nature of the service on which the ship is to be employed, the 
 courts have been disposed to interpret charter-parties in a sense 
 '' agreeable to the nature of the contract that a prudent shipowner 
 would make,'^ preserving to the owner the constructive possession of 
 his ship, and his lien for freight upon the goods carried by her. Before 
 the case of Hutton v. Bragg (e), the first in which the shipowner's 
 lien for freight due to him under a charter-party was directly ques- 
 tioned, it had been decided, in several cases, that not the absolute 
 owner, but the charterer of a ship, was to be considered the owner 
 pro tempore, and subject to the responsibilities which attach to that 
 character. Thus the case of Parish v. Crawford (/) was considered 
 to be of doubtful authority. The doctrine in Vallejo v. Wheeler [g) , 
 and Mackenzie v. Roive (A), continued unimpeached; and although 
 
 ((?) See judgment of Eichaedson, J., in (/) 2 Stran. 1252, ante, p. 25. 
 
 Christie v. Leiois, 2 Brocl. and Bing. 442. {g) Cowp. 143, ante, p. 27. 
 
 {d) Saville v. Camjnoti, 2>ost, p. 225. (A) 2 Campb. 482, ante, p. 26. 
 (c) 7 Taunt. 14.
 
 222 OF THE shipowner's lien foe freight. 
 
 Part IV. it liacl been determined, iu the case of BohtlinffJc v. higlis (a), that tlie 
 delivery of goods on board a sliip of Avhich the vendee was tlie charterer^ 
 Avas not such a delivery to him as would preclude the right of the 
 vendor to stop them in transitu on the vendee's insolvency ; it was 
 held, in a case in which a vessel had been chartered for a term of 
 years, during which period the charterer was to have the entire dis- 
 position and control of her, that the vessel was the charterer's own, 
 and that the delivery of goods to his order on board, Avas the same 
 thing as delivery into his warehouse (b). 
 
 The case of Hutton v. Bragg was an action of trover by the assignees 
 of a bankrupt, for goods detained by the defendant, avIio was the 
 owner of the ship Neptune, on a claim of lien for freight due to him 
 by the bankrupt iu respect of the goods. It appeared that the bank- 
 rupt had chartered the defendant's ship for a voyage from London to 
 the Cape of Good Hope and back, and covenanted to pay a gross sum 
 of 2,100/. as freight for the voyage, out and home. The charter-party 
 expressed that the ship was let out to freight [c], but that the master 
 should reserve the cabin for his sole use and for the usual accommo- 
 dation for his crew and ship's stores, and that the freight should be 
 paid by bills drawn during the voyage, or upon the return of the 
 vessel home. The ship performed the voyage agreed upon ; but, 
 upon her arrival in the Thames, several of the bills drawn during the 
 voyage had been dishonoured, and the charterer was in that state of 
 insolvency that the owner asserted this right of lien as a security for 
 his freight, and took possession of the goods for which the action was 
 brought. It was contended, on the part of the plaintiffs, that the 
 ship having been let for the whole voyage to the charterer, the ship- 
 ment of goods upon her did not give any lien upon them to the 
 defendant ; that the ship was entirely under the control of the char- 
 terer ; that such a letting was of the same nature as letting a house or 
 hired room ; that the gross sum to be paid for the hire was rent rather 
 than freight ; and that the defendant never had any possession of the 
 cargo upon which to exercise his lien. Lord Chief Justice Gibbs, in 
 delivering his judgment, said, " We decide on the general ground that 
 there is no lien whatever under the circumstances of this case. The 
 defendant is the owner of a ship — the bankrupt is the charterer of a 
 ship; and for one sum of 2,100/. he Avas to have the whole use of the 
 ship for the voyage out and home. It is clear that he might have 
 put her up as a general ship ; have filled her with goods of other per- 
 sons ; and, Avhen they came home, the defendant could not have 
 touched those goods, by way of detaining them, till his freight was 
 paid him by the charterer. But here it Avas contended, that, inasmuch 
 as these are the goods of the charterer put on board by himself, the 
 defendant might detain these goods till those dishonoured bills were 
 paid by the charterer. He could not haA'e had this right unless he 
 
 (a) 3 East, 384. {<") This doi s not appear from the report, 
 
 (h) Fowler v. Ki/merov M' Tag r; art, cited hut it was aiiinitted to be so in the case of 
 
 in the case of lufflis v. Usheriuood, 1 East. ISaville v. Campion, hereafter cited. 
 
 515, and 3 East, 396.
 
 3. OF owner's lien where ship chartered. 223 
 
 had a lien on the goods ; he could not have a lien on the goods unless Chap. 2. 
 he had in some sort the possession of the goods ; here he had no pos- 
 session of the gc>ocls whatever. The consignor is a bankrupt. He 
 was the owner of the ship for the voyage. He puts his own goods, 
 then, on board his own ship, and the master and the crew ought to 
 have obeyed his orders for the voyage. Lord Hardwicke, in Paulv. 
 Birch, says, ' the sum reserved is improperly termed freight, for it is 
 rather for the hire of the ship/ It is, indeed, more like rent than 
 freight. If, then, the charterer be owner for the voyage, and if it be 
 the duty of the master and crew to obey the owner's instructions, 
 when the bankrupt puts his own goods on board his own ship the 
 master and crew ought to obey him until the voyage is ended, which 
 is not until a full delivery of the goods, and unLil that time the pos- 
 session of the ship does not revert to the owner.'' In this opinion, 
 which is said to have occasioned some alarm to the shipping interests, 
 Dallas, J. and Park, J. concurred. That the opinion of the Lord 
 Chief Justice was much influenced by the strong expressions of 
 the charter-party, '' Id the vessel to freight to the merchant, who 
 hath accordingly hired and taken the same" — was expressly stated 
 by him in the course of the argument of a case which immediately 
 followed. 
 
 In that case, Tate v. Meek [d), the defendant, as owner of a vessel, 
 covenanted by charter-party with A., the freighter, to take on board 
 a cargo in the Brazils, and deliver the same in England. A. cove- 
 nanted to put the cargo on board, and pay freight at a certain rate 
 per ton, part in money on the arrival of the vessel, and the remainder 
 by bills at two months after the dtlivery of the cargo. The owner 
 bound the vesssel and her freight, and the freighter bound the cargo, 
 for the due performance of their respective covenants. Part of the 
 cargo was shipped for A., and part for other consignees. The 
 defendant delivered the goods to the other consignees, on payment of 
 the freight, at a less rate than that contracted for by the charter- 
 party ; but refused to deliver to the plaintiffs the goods consigned to 
 A., which he had assigned to them, without their paying the whole of 
 the freight due under the terms of the charter-party. Gibbs, C. J., 
 in delivering the judgment of the court, said, " This and the two 
 other cases dependent on it stand on a very different ground from 
 Hutton v. Bragg. There was no covenant for the delivery of the 
 goods, nor any question on the effect of cross covenants for the deli- 
 very of the goods on the one side, and the payment of freight on the 
 other side; here, the shipowner covenants that he will deUver the 
 goods agreeably to the bills of lading. And the merchant covenants 
 that the freight and primage shall be paid as follows : namely, 300/. — 
 part thereof to be paid in cash forthwith, on the day the brig should 
 be reported inward at the Custom-house, in the port of London, on 
 her return from the voyage; and the remainder of the freight and 
 primage to be paid by a good and approved bill or bills payable in 
 
 (rf) 8 Tauut. 280.
 
 224 OF THE shipowxee's lien foe feeight. 
 
 Part IV. London^ at two months after clate^ from the day on which the delivery 
 shall be completed. The ship was duly laden at Bahia, and bills of 
 lading were signed,, making the goods deliverable to the freighter or 
 his assigns^ they paying freight according to the charter-party. The 
 goods in question remained undelivered at the disposal of the master. 
 The merchants required these goods to be delivered to them without 
 tendering any bill or security. The question is, Whether the delivery 
 of the goods and payment by a bill be not concomitant acts, which 
 neither party is obliged to perform without the other being ready to 
 perform the correlative act ? "We think they are such. If the whole 
 cargo had been one bale of goods there would have been no doubt ; 
 but the difficulty is, that the remainder of the freight is to be paid by 
 bills to bear date from the day of the delivery, and the delivery may 
 take several days. We think the captain might obviate this by land- 
 ing the cargo in his own name, and tendering a bill for the whole 
 amount dated from that day. We are the more satisfied with this 
 judgment, because it not only meets the justice of the case, but the 
 parties, if dissatisfied wdth it, have liberty reserved to turn the case 
 into a special verdict.^'' 
 
 In Yates v. RaUston [a), the owner of a vessel, by deed indented, 
 granted and let his ship to freight, and covenanted that he should 
 proceed in ballast to Miramichi ; there take in a cargo from the agents 
 of the freighter ; therewith proceed to Liverpool, Hull, or London, as 
 she should be directed by the freighters ; and there make delivery to 
 the freighters. And the freighters covenanted to deliver the cargo 
 to the ship at Miramichi, and to pay the freight on delivery to them 
 at her homeward port — part in money, and the remainder by bills at 
 four months. In this case the court also determined in favour of the 
 owner's lien. Gibbs, C. J., said, that the same observation Avhicli 
 had been made in Tate v. Meek applied here — that the delivery of 
 the cargo and the payment of the freight were concomitant acts, and 
 the one could not be required without performance of the other. 
 
 In Yates v. Meynetl [b], which was a similar case to Yates v. RaUston, 
 GiBBS, C. J., gave the following judgment : " Here, also, the freight 
 is to be paid on the delivery of the goods. In all these cases the 
 difficulty exists, Avliich I stated in the first of them, that the remainder 
 of the freight is to be paid by bills, to bear date from the day of the 
 delivery, and the delivery may take several days. But for the reasons 
 stated in the first of them, we are of opinion, in all these cases, that 
 the owner of goods cannot require them to be delivered without satis- 
 fying the shipowner for the freight that remains due.'"' 
 
 From these cases, and particularly that of Yates v. RaUston, it has 
 been rather hastily assumed that Chief Justice Gibbs was disposed to 
 recede from, or at least materially qualify, the terms of his judgment 
 in the case of Hutton v. Bragg. From the judgment of Dallas, C. J., 
 in the subsequent case of Christie v. Lewis [c), it distinctly appears 
 that there is no ground for that assumption. In the case of Yates v. 
 
 (a) 8 Taunt. 293. (c-) Fost, p. 226. 
 
 (6) 8 Taunt. 302.
 
 3. OF owner's lien wherk ship chartered. 225 
 
 Railston, the charter-party certainly contained the words ''granted Chap. 2. 
 
 and let" the ship for the voyage in question ; but the construction 
 
 of those words, as an actual demise of the ship, would have been 
 inconsistent with other stipulations in the charter-party, which clearly 
 showed an intention that the possession of the ship should not pass 
 to the charterer. 
 
 In the next case, that of Saville v. Campion (d), it was covenanted 
 by charter-party that the owner should take on board his ship in 
 London all such goods as the freighter thought fit to load, and should 
 proceed therewith to Madras, and there, after delivering her outward 
 cargo, receive from the freighter's agents a homeward cargo, and 
 deliver the same in London ; freight to be paid at so much per ton 
 on the registered tonnage of the ship — 500/. at the expiration of six 
 months from the date of the charter-party, a moiety of the remainder 
 by bills at two months, and the residue by bills at four months, to be 
 delivered on the day of the ship's arrival in the Thames ; the ship to 
 take her regular turn in the East Lidia Docks. It was further agreed 
 by the owner, that such passengers as might be required by the 
 freighter should be conveyed in the ship, and that all the cabins, 
 except one, should be for the benefit and at the disposal of the freighter. 
 The freighter covenanted to send goods alongside the ship, and to 
 receive them from alongside ; and there was a special clause, provid- 
 ing that the freighter might appoint a person to go out and home as 
 supercargo, and to take upon himself the authority of the commander 
 in the stowage of the cargo, but not to interfere with the duties of 
 the commander in any other manner, without his leave. 
 
 Lord Tenterden, delivering the judgment of the Court of King's 
 Bench, said, '' It was contended, that this being a chartered ship, the 
 charterer was to be considered as the owner for the voyage, according 
 to the cases of Vallejo v. PVheeler {e), and The Trinity House v. 
 Clark (/) ; and that, consequently, the merchant charterer, being the 
 person in the possession of the ship, was also the person in possession 
 of the goods on board the ship, and the defendant, who had thus 
 parted with the possession to him, could not by law have a lien upon 
 the goods of which he never in law had the possession : and the case 
 of Hutton V. Bragg was referred to as an authority in point. It was 
 observed, that although the charter-party in this case did not contain 
 any terms of demise or letting to freight, as the instrument in the 
 case of Hutton v. Bragg was assumed to do, yet that it contained 
 matter equivalent to such words, as a lease for years of a chattel real 
 may be made without express words of demise — any words plainly 
 showing that the one party is to give up to the other, and the other 
 to take and hold possession of the land for a definite time, being 
 sufficient to constitute a lease. This latter proposition is undoubtedly 
 true; but upon an attentive consideration of the charter-party, in 
 
 (d) 2 B. & Aid. 503. The reader is re- (e) Ante, pp. 27, 221. 
 
 quested to refer to the report; the charter- (/) Ante, p. 29. 
 
 party, which contains many special pro- 
 visions, is too long for insertion here. 
 
 Q
 
 226 or THE shipowner's lien foe feeight. 
 
 Part IV. the present case_, we find nothing either in its language or in its 
 '~~ object -which imports that the merchant charterer was to have pos- 
 session of the ship. The whole instrument contains matter of contract 
 and covenant only. At the making of the contract the ship was 
 under the government of Price^ the master, as the servant and agent 
 of the defendant, the oAvner, and so continued, in fact, during the 
 whole voyage. The owner agrees that such passengers as may be 
 required by the freighter shall be conveyed in the ship ; and that all 
 the cabins, except one, shall be for the benefit and at the disposal of 
 the freighter. The freighter agrees to send goods alongside the ship, 
 and to receive them from alongside ; and there is a special clause, pro- 
 viding that the freighter may appoint a person to go out and home as 
 supercargo, and to take upon him the authority of the commander in 
 the stowage of the cargo, but not to interfere with the duties of the 
 commander in any ether manner without his leave : so that there is 
 not any one act to be done on board the ship by the fi'eighter or his 
 agents, except the stowage of the goods, which is specially provided 
 for. And this special provision, as well as the clause relating to the 
 cabins, would be unnecessary if it had been intended that the freighter 
 should have possession of the ship ; because, in that event, he might 
 stow and place goods and persons as and where he himself should 
 choose, unless restrained by some special contract on his part. The 
 charter-party, in the case of Hutton v. Bragg, ivas in terms of 
 letting to hire. This does not distinctly appear by the report ; but a 
 copy of it was produced, aud it was admitted to be so in the argument 
 of the present cause. In the case now before the court, the charter- 
 party, as has been before observed, contains no such terms ; nor does 
 the nature of the service require that the merchant should be con- 
 sidered temporary owner in any question between him, or those who 
 represent hini, and the defendant. Upon this instrument, therefore, 
 ana between the parties to this suit, we think the defendant had the 
 possession of the ship and goods for the voyage, and a lien on the 
 goods for the stipulated hire of the ship, there being nothing to show 
 that the delivery of the goods was to precede the payment of that hire 
 in cash and bills, as provided by the deed.''^ 
 
 The case of Christie v. Leivis{a), in the Common Pleas, was the 
 next case on this point. The owner, by charter-party, granted and 
 to freight let, and the merchant took and to freight hired, the ship 
 for the voyage. The owner covenanted that the master should receive 
 on board at London goods to be sent alongside by the charterer ; 
 deliver them from alongside at Newfoundland, according to bills of 
 lading ; there receive and deliver at Demerara other goods : and there, 
 in like manner, receive other goods and deliver them in the London 
 Docks, according to bills of lading ; aud that the ship's boats should 
 assist in loading and unloading, so as the exclusive duties and opera- 
 tions of the ship should not be thereby impeded. In consideration 
 whereof, the charterer covenanted to send and take goods from along- 
 
 (a) 2 B. & B. 410; 5 Moore, 211.
 
 3. OF owner's lien wheee ship chaeteeed. 227 
 
 side, and to pay for the freight and hire o£ the ship for the voyage Chap. 2. 
 
 2^600/., with primage^ &c., one quarter part thereof on delivery of 
 
 goods at Newfoundland, by good bills at sixty days' sight on London, 
 and the remainder by good bills at two months' date from the day of 
 the ship's report inwards at the port of London. The voyage was 
 performed, and goods of the charterer, and also goods of third persons 
 brought from Demerara, under bills of lading, the latter being 
 deliverable to the consignees on payment of certain specified freights 
 therein mentioned, Avhich freights the defendant received. No bill 
 for the three quarters' freight per charter-party having been given or 
 tendered to him, and a bill for one quarter, given at Newfoundland, 
 having been dishonoured, the question was. Whether the defendant 
 had a lien on the freight received by him under the bills of lading 
 from the consignees, for the amount due to him under the charter- 
 party ? And the court, Dallas, C. J. dissentiente, held, first, that 
 notwithstanding the words of the grant, taking the whole charter- 
 party into consideration, the possession of the ship did not pass to 
 the freighter, but remained in the owner ; and that as the freight per 
 charter-party was to be paid by him in good bills prior to the 
 delivery of the homeward cargo, he had a lien thereon for such 
 freight. Secondly, that he had a right to receive the freight per 
 bills of lading from the consignees, and had a like lien on such 
 freight when so received. 
 
 This question of lien next arose in the case Faith v. The East 
 India Co. {b). It does not appear, from the report, that the charter- 
 party contained any words of demise, or any provisions inconsistent 
 with a mere contract for the loan and use of the ship for the carriage 
 of goods. Part of the freight was also to be paid on the delivery of 
 the goods, and the master received express instructions from the owner 
 '' to sign all bills of lading with the clause of ' freight payable as per 
 charter-party.' " The court distinguished, on these grounds, the case 
 from that of Hutton v. Bragg, and determined, as to so much of the 
 goods as were considered to belong to the charterer, — viz., such as 
 had under a collusive arrangement been purchased on his account, 
 and shipped by his agents, to whom he was indebted, and made 
 deliverable by bills of lading to their agents, to whom he was also 
 indebted — that they were subject to the lien of the owner to the 
 full extent of the freight due under the charter-party ; and that, as 
 to the goods of sub'freighters, they also were liable to the owner's 
 lieu to the extent of the freight due upon each of those con- 
 signments. 
 
 On the identical charter-party which had been considered in the 
 case of Savill v. Campion, the owner's lien for freight came again 
 under discussion before the Court of Common Pleas in the case 
 of Campiony. Colvin (c). This case was determined, after the decision 
 of Newberry v. Colvin, in the Exchequer Chamber, had been affirmed, 
 in the House of Lords. '^lam unable," said Tindal, C. J., "to 
 
 (5) (t Barn. & Aid. 630. (c) 3 Bing. N. C. 17; 3 Scott. 338. 
 
 Q 3
 
 228 . OF THE shipowner's lien eoe preight. 
 
 Part IV. come to a conclusion diflferent from that at which the court arrived 
 in Saville v. Campion, Tate v. Meek, and some other cases, in which it 
 was held, that an owner retaining the possession of his ship has a lien 
 on the cargo for the hire of the ship under the charter-party. It has 
 been attempted to distinguish this case in two particulars : first, that 
 this charter-party does not leave the owner in possession of the 
 ship — and, if it does not, he can have no such possession of the cargo 
 as to entitle him to a lien for the hire of the ship ; further, that 
 according to the decisions, the holder has only been held entitled to 
 enforce his lien where the payment of the freight for the ship is to 
 accompany or precede the delivery of the goods. With respect to the 
 possession of the ship, the main reliance has been on Newberry v. 
 Colvin. Let us see, then, whether this case is distinguishable from 
 Neivberry v. Colvin. I think it is distinguishable in most material 
 points : this is the case of an owner in possession of the ship, who 
 covenants by his captain to carry out goods to their destination, and 
 to bring a cargo home ; the ordinary case in which the owner has a 
 lien for the hire of the ship. But such was not the case of Neivberry 
 V. Colvin, where the owner had parted with the possession of the ship, 
 the charterer ha%ing taken her into his service, and agreed to pay for 
 the use and hire of her a certain freight. We have, then, to see here 
 whether the goods brought home were to be delivered before the 
 payment of the tonnage freight stipulated for by the charter-party, 
 and it is only necessary to look at the terms of the charter-pai'ty to 
 see that such is not the case. In the first place, the freight is to be 
 calculated by the registered tonnage of the ship, perfectly inde- 
 pendent of the value of the goods that compose the cargo ; in the 
 next, 500/. of this freight is to be paid down at the expiration of six 
 months from the date of the charter-party, a moiety of the remainder 
 by bills at two months to be delivered on the day of the ship's arrival 
 in the Thames, and the residue by bills at four months, to be de- 
 livered the same day — that is, at a time necessarily anterior to the 
 delivery of the goods, if we look to another part of the charter-party, 
 which provides that the ship, after her arrival in the Thames, shall 
 take her regular turn in the East India Docks for the purpose of 
 such delivery. Looking, therefore, to the intention of the parties, it 
 is clear that the shipowner meant to insist on the delivery of the bills 
 before the delivery of the cargo ; so that with respect to the time at 
 which the freight was payable, there is no difference between this and 
 the preceding cases.'' 
 
 In the case of Belcher v. Capper {a), in which it was agreed by 
 charter-party that the owners should let and the charterer hire the 
 vessel for six months, during which the charterer was to possess the 
 entii'e and exclusive use and disposal of the whole reach and burthen 
 of the vessel, with the exception of the space occupied by the cabin, 
 together with room for the usual accommodation of the crew and for 
 
 (fl) 4. M. k G. 502 ; 5 Scott's N. K. 257.
 
 3. OF ownee's liex where ship chakteeed. 229 
 
 tlie stowage of stores and provisions; that tlie master shovild receive Chap. 2. 
 a full and complete cargo, and proceed therewith on such lawful 
 voyage or voyages as the charterer should direct him to do ; that he 
 should deliver the goods agreeably to bills of lading ; that the freight 
 and primage should be payable to his order ; that the owners should 
 keep the vessel tight and manned and pro\dded with necessary stores ; 
 that the charterer should pay to the owner at a certain rate per ton 
 per month at specified intervals, and the balance in cash on the ship's 
 final discharge ; that the charterer should have the privilege o£ puttmg 
 in a master of his own appointment, he finding the cabin with all 
 stores, the owner allowing whatever rate o£ wages he paid his own 
 master, the owner not to be responsible for the master's acts should 
 he deviate from the charter, but the charterer to be responsible to the 
 owner for the conduct and integrity of the master while he should 
 have the navigation of the vessel ; the decision was that the possession 
 of the ship had passed to the charterer, and that the owner had no 
 lien for the stipulated hire. " In each case," said Chief Justice 
 TiNDAL, after observing upon the cases referred to in this and the 
 following section, " the whole contract must be taken together, and 
 due effect given to the several clauses that controvert or qualify each 
 other ; and thus it often happens that the same expressions Avill bear 
 different meanings and require a different interpretation accordnig to 
 the context of the instrument in which they are found. In consider- 
 ing this charter-party, therefore, we have not relied implicitly upon 
 the interpretation put by judges in other cases on any particular 
 expression also found in this contract; but we have collected the 
 intention of the contracting parties from the whole scope of the 
 instrument, having reference nevertheless to the several authorities 
 cited at the bar as guides to our decision ; and we are satisfied that 
 in this particular case, according to the terms of this particular 
 charter, the possession of the vessel was given up by the o^vners to 
 the charterer during the continuance of the contract ; that the master 
 was in possession of the cargo as agent for the charterer and not as 
 servant of the owners ; that personal credit was given to the charterer 
 for the payment of the hire of the vessel, and that no lien or right of 
 stoppage of the goods was intended to be reserved to the owners as a 
 security for the payment of the contract price. And we come to this 
 conclusion because we find words of demise large enough to transfer 
 the possession, if such words were necessary. We find also the 
 owners giving to the charterer the power of appointing his own master 
 and requiring him to be responsible for the conduct of the master so 
 appointed, as he would be for the conduct of his own servant, and we 
 find that, in fact, the master was so appointed by the charterer. AVe 
 find further, that the freight for the goods was to be paid according to 
 the bills of lading to the master thus appointed by the charterer, for 
 the charterer's use, without any stipulation for its application towards 
 the payment of the agreed price for the hire of the vessel. And we 
 further find, that according to the terms of the contract the parties 
 contemplated that every part of the cargo would be delivered before
 
 230 OF THE SHIPOWXEr's LIE^' FOR FREIGHT. 
 
 Part IV. the balance reserved -^voulcl become payable ; aud^ on the other hand, 
 we find nothing in the contract that indicates any intention to make 
 the delivery of the cargo depend upon the precedent or concomitant 
 payment of any portion of the stipulated freight '^ (a) . 
 
 In a subsequent case^ though the possession of the ship does not 
 appear to have passed to the charterers, the decision was against the 
 shipowner [b) . By a charter-party between the master of the ship and 
 the charterers, it was agreed that (the cabin, state-rooms, and room 
 for stowage of cables, &c., and crew excepted,) the ship should take 
 on board from the charterers, who were to have the full reach of the 
 hold from bulkhead to bulkhead, including the half-deck, a full and 
 complete cargo (the owners employing sufficient hands for that pur- 
 pose), proceed to her destination, and there deliver the cargo agreeably 
 to bills of lading ; in consideration whereof the charterers were to 
 deliver the cargo alongside to be laden, and cause it to be received at 
 the port of discharge, and " pay for the use and hire of the said vessel 
 for the said voyage ^^ a lump sum; payment to be made by the captain 
 receiving " such freight as the charterers may have payable abroad as 
 per bills of lading, not exceeding one-half, or by an order handed 
 over to him by the charterers at their option, at the current rate of 
 exchange, which order is to be payable at the port of discharge ; and 
 the balance to be paid by the charterers' acceptance payable in 
 London at three months from the day of sailing — the master at the 
 charterers' request to sign bills of lading in the usual and customary 
 manner, and at any rate of freight that may be filled-up and made 
 payable in any manner the charterers may choose without prejudice 
 to this charter. The vessel to be consigned to the charterers^ agents 
 at her port of discharge/^ The ship was put up by the charterers as 
 a general ship, and they having suspended payment, and bills given 
 by them for part of the lump sum, which they had agreed to pay to 
 the owner for the use and hire of the ship, being dishonoured, he 
 claimed from the shippers the freight payable by them under bills of 
 lading signed by the master. It was held that he was not entitled to 
 it. ''The question,^' said Wightman, J., delivering the judgment of 
 the Court of Queen^s Bench, " is, whether the plaintiff under the cir- 
 cumstances of this case, is entitled to require payment to himself of 
 the freight under the bills of lading. That depends upon the question 
 whether the contract into which the master and shippers have entered 
 is made by the master as agent of the charterers or as agent of the 
 shipowner. Looking at the terms of the charter-party, I find it diffi- 
 cult to doubt that he is the agent of the charterers and not the agent 
 of the shipowner. By the terms of the charter-party, the ship is let 
 for a particular voyage, and the charterers are to pay the shipowner a 
 lump freight for the whole voyage, and the master, at the request of 
 the charterers, is to make bills of lading at any rate, and payable in 
 
 (n) Faith v. East India Co., ante, p. 227 j {b) Marqiiand v. Bamier, 6 E. & B. 322 j 
 
 Campion y. Colnn,ante, p. 225; and Small 25 L. J. Q. B. 313. 
 V. Moates, 9 Bing. 574. FeeJc v. Larsen^ 
 40 L. J. Ch. 763.
 
 4. WHERE owner's LIEN LIMITED BY HBI. 231 
 
 any manner, the charterers may choose^ without prejudice to the Chap. 2. 
 charter. This, therefore, gives the charterers the direct management 
 as to the terms on which the bills of lading are to be signed. In fact 
 the bills of lading are not signed in any manner compromising the 
 rights of either party ; for all the freight now in question is to be paid 
 in Liverpool as per margin, and the margin specifies only that it is to 
 be paid within a month of the ship's sailing, not specifying to whom 
 it is to be paid, leaving thus open the question who is entitled to 
 claim the freight; in other words, whose agent the master is. As far 
 as the parties shipping the goods are concerned, there may be an 
 unnamed principal to whom they are to look. But when it is once 
 shown that the master was in fact agent only for the charterers, and. 
 this is made known to. the shippers, it appears to me that the char- 
 terers are entitled to recover the freight under the general authority 
 which the shipowner has conferred upon them. Whatever might 
 have been the result if the charter had not contained these terms, 
 I think it is clear that the charter here makes the charterers entitled 
 to the freight.^' 
 
 It has been observed (c) of this case, that, '^ if sustainable at all, it 
 must rest upon the authority of Colviny. Neivberry" {d) before cited; 
 but the reasoning of Wightman, J., proceeds upon the ground rather 
 of an entire cession to the charterers of the owner^s right to the 
 freight to be stipulated by bills of lading, which it appears to have 
 been considered that the plaintiff, who was the principal owner, and 
 the master of the ship, had, without any reservation of his own right, 
 undertaken to sign on behalf of the charterers, than as in Colvin v. 
 Neivberry, on a change of the ship^s possession. " In effect,^' said 
 Crompton, J., ''the owner claims to have a right of lieu contrary to 
 the contract under the charter-party.^' ~ 
 
 4. Of Cases in which the Shipowner's Lien for Freight has been held 
 to have been limited by him. 
 
 We have seen, that without entirely parting with the possession 
 of his ship, and with the right of lien for freight which attaches to the 
 possession of it, a shipowner may so limit that right as to render it 
 inoperative against the goods of third parties, to a greater extent than 
 has been stipulated by bills of lading signed for their goods by the 
 master, acting with his sanction on behalf of the charterer. 
 
 In the case of Mitchell v. Scaife (e), an action of trover for the 
 cargo of a ship which the defendant, being part owner of her, had let 
 for a voyage from Liverpool to Jamaica and back for a gross sum by 
 Avay of freight, the master had signed bills of lading for the cargo, 
 ivhich belonged to a third person, specifying a rate of freight amount- 
 ing to a less sum than that mentioned in the charter-party. '' I am 
 
 (c) Per Ceesswell aud Willes, JJ., (rf) Ante, p. 30. 
 
 in Qilhison v. Middleton, 2 C. B. (n.s.) (e) 4 Campb. 298. 
 
 134; 26 L. J. C. P. 209.
 
 232 OF THE shipowner's lien foe freight. 
 
 Part IV. of opinion," said Lord Ellexborough, "that the shipowner had no 
 
 right to detain the cargo for more than the freight mentioned in the 
 
 bill of lading. The plaintiff is the bona fide indorsee of the bill of 
 lading. We know that this is an instrument which the master has in 
 general authority to sign, and the plaintiff seems to have had no 
 reason to suspect that this authority was not properly exercised. 
 Under such circumstances, the owner of the ship cannot be heard to 
 aver against the contract created by his own agent through the 
 medium of the bill of lading." " It is true," said Kichardson, J., 
 in the case of Christie v. Le^vis, (a), " that the owner has not a lien 
 on the goods mentioned in the bills of lading for all his freight due on 
 the charter-party, but he is entitled to the freight on the bills of lad- 
 ing in preference to the freighter" — "I think,^' said Abbott, C. J., 
 in the case of Faith v. The East India Company [b), "that the 
 owner of the ship is entitled to a lien upon the goods put on board by 
 the different shippers abroad to the extent of the freight due upon 
 each of those consignments " — " That a shipper," said Tindal, C. J., 
 in the case of Small v. Moates, "putting his goods on board the ship, 
 upon the faith of a bill of lading signed by a person whom the owner 
 has allowed to bear the character of master, would be entitled to 
 receive his goods at the end of the voyage, upon payment of the freight 
 reserved by the bill of lading, may be readily admitted as well upon 
 the reasonableness of the proposition itself as upon the authority of 
 decided cases" — "I am of opinion," said Cresswell, J., in the case 
 of Odams v. Avery (c), "that when a ship is chartered as a general 
 ship, and the captain signs bills of lading for payment of a certain 
 freight, the consignees cannot be made liable for anything beyond 
 that freight " — " The cargo," said Cockburn, C. J., in Gilkison v. 
 Middltton {d), "being expressly made liable for all freight due under 
 the charter-party, it follows that on the arrival of the ship there was 
 900/. due for freight, for which the cargo was liable. If matters had 
 so remained, the owners clearly would have had a lien for that 
 amount. But they have by their master become parties to bills of 
 lading making the goods deliverable to the consignees on payment of 
 certain specified freight, and the defendants have made advances on 
 the faith of those bills of lading. The owners, therefore, have by 
 their own act placed third parties in a situation in which they would 
 sustain prejudice by their insisting on the full freight to which they 
 would otherwise have been entitled. That being so, the utmost that 
 the plaintiffs can be entitled to recover as against the consignees is 
 the freight mentioned in the three bills of lading" — " If," said 
 Pollock, C. B., in Foster v. Colby (e), "a shipowner so conducts his 
 business as to permit the master to sign bills of lading at a lower 
 freight than that payable by the charter-party, in consequence of 
 which parties are induced to make advances on such bills of lading, 
 
 (a) Ante, p. 226. (rf) 2 C. B. (n.s.) 134; 26 L. J. C. P. 209. 
 
 ib) Ante, p. 227. (e) 3 H. & N. 705 ; 28 L. J. Ex. 81. 
 
 (c) 19 L. T. C. P. 63.
 
 4. WHEEE owner's LIEN LIMITED BY HIM. 233 
 
 the shipowner is bound" — " If,'^ said Baron Martin, in Shand v. Chap. 2. 
 Sanderson {f), "these goods were the charterer's goods, the ship- 
 owner, assuming the payment at two months to be out of the ques- 
 tion, would have had a right to hokl the goods till the charter-party- 
 freight had been paid, but in this charter-party there is a provision 
 that the master shall sign bills of lading at any rate of freight without 
 prejudice to the charter-party ; and if a third person gets the bill of 
 lading for a good consideration, bond fide, he is entitled to have the 
 goods delivered to him on payment of the freight therein stipulated 
 for''' — ""With regard," said Pollock, C. B., in the same case, "to 
 the meaning of the clause, ' without prejudice to the charter-party/ 
 it does not mean that the holder of the bill of lading is to pay freight 
 according to the charter-party, but that the charter-party being made, 
 as a matter of contract between the parties to it, the master signing 
 bills of lading at a less freight shall not prejudice the shipowner's 
 right to recover the charter-party freight from the charterer." 
 
 The decision of the courts in all these cases was in conformity 
 with the opinions thus expressed. 
 
 It has been decided, on the other hand, that, although the goods of 
 third persons laden on the ship can only be detained for the sums 
 that they may have agreed to pay the charterer, or that may be 
 mentioned in the bill of lading, his own goods and the goods of those 
 who stand on his title, or which are linked by collusive arrangements 
 with it, may be detained not only for freight, properly so called, but 
 also for a sum agreed to be paid for the use and hire of the ship, and 
 that the bankruptcy of the charterer, or any assignment or pledge 
 made by him of his goods after their shipment, does not deprive the 
 owner of his right {g) . 
 
 It has been held that the master may detain, by virtue of his 
 common-law lien, any part of the merchandise for the freight of all 
 
 (/) 4 H. & N. 381 ; 28 L. J. Ex. 278. a gross sum payable at a future time, for 
 
 (g) Faith v. East India Co., 4 B. & A. goods which had been sold to the charterer, 
 
 630. Small v. Moates, 9 Bing. 594. Gled- and shipped on his account, by the plaintiff, 
 
 stanes v. Allen, 12 C. B. 202. Kern v. who still held the mate's receipt for them, 
 
 Deslundes, 10 C. B. (n.s.) 205 ; 30 L. J. and between whom and the charterer an 
 
 C. P. 297. Shand v. Sanderson, 4H. &N. agreement had taken place to rescind the 
 
 381 ,• 28 L. J. Ex. 278. In Thompson contract of sale, the refusal of the master 
 
 V. Traill, 2 C. & P. 334, Lord Tenteeden to re-deliver the goods on demand, and offer 
 
 is reported to have decided, that a master to pay all reasonable charges, and every 
 
 of a ship who had refused to re-deliver lawful claim the owners might have on the 
 
 goods to the owner of them, on the ground goods, was held to be a wrongful conver- 
 
 that they were shipped for a particular sion. Thompson v. Small, 1 Com. B. Rep. 
 
 port to which he should convey them, was 328. See Tindal v. Taylor, 4 E. & B. 219 ; 
 
 not guilty of a conversion. In that case 24 L. J. Q. B. 12, where it was held, that a 
 
 there was no tender of the freight which person who has shipped goods m a general 
 
 had begun to be earned, or of any compen- ship is not entitled at pleasure to demand 
 
 sation for the trouble of getting them from them back without payment of the freight, 
 
 the hold ; it was a general ship, and the The question of lien did not arise in that 
 
 master had signed a bill of lading to a dif- case, for a lien only attaches where the 
 
 ferent person. But in an action of trover freight has been earned by performance of 
 
 against the master of a vessel chartered for the voyage.— Jfr. Justice Shee,
 
 234 OF THE shipowner's lien foe freight. 
 
 Part IV. ^^^^ is consigned to the same person {a). But if goods be sent under 
 
 different contracts to be conveyed to different places, tlie lien for the 
 
 freight of each will only attach to the goods in respect of -n^hich it 
 has been earned {b). 
 
 In some of the cases (c) which have been referred to in this section, 
 the owner^s right of lien for freight was reserved to him by the 
 charter-party in express terms. The insertion of a clause of this 
 kind will be conclusive in favour of the owner's lien, to some extent, 
 under charter-parties which without it might on this point be 
 of doubtful construction ; but it will not enable the master to assert 
 against sub-shippers a right of lien on goods for any greater amount 
 than is stipulated by the bill of lading which he has signed, or by 
 any contract between the charterer and the shipowner which, being 
 expressly referred to in the bill of lading, is incorporated with it (c?) . 
 
 The owners in these reservations often stipulate that they shall 
 have an absolute lien on the cargo for all freight, dead freight, and 
 demurrage; and the object of them is rather to secure a right of lien 
 for the two last claims tlian to enlarge the lien for freight or ship's 
 hire, which, within the limits already explained, exists without any 
 stipulation for it. The meaning is, that wherever there can be a lien, 
 the shipowner is to have it, and such lien is to extend to dead freight 
 and demurrage (e) . 
 
 5. Cases in ivhich Questions have arisen as to the Waiver or 
 Reservation by the Oivner of his Lien. 
 
 The right may exist, if it appears from the instrument in any way 
 that the payment is to be made in cash or bills before or at the 
 delivery of the cargo ; or even if it does not appear that the delivery 
 of the cargo is to precede such payment. 
 
 On the other hand, it may distinctly appear from the charter- 
 party that the owner, has been content to trust to the personal 
 responsibility of the merchant, and by fixing a specific term of pay- 
 ment, before or after the delivery, to waive his right of lien (/). 
 
 (a) Sodergren v. Flight, Guild. Sit. P. H. & N. 705. Gray v. Can-, 40 L. J. 
 
 Trill. T. 1796, before Lord Kentoxj Q. B. 257. McLean v. Fleming, L. E. 
 
 quoted 6 East, 622. See MoUer v. Young, 2 H. L. Sc. Ca. 128, where the damages 
 
 5 E. & B. 755 ; 2i Ti. J. Q, B. 217, in for not loading a full cargo were in point 
 
 Ex. Ch. of fact ascertained, without which it seems 
 
 (6) Bernal v. Pim, 1 Gale, 17. there could be no lien. 
 
 (c) Small V. Moates, 9 Bing. 574. Foster (/) Iaicus v. NocJceUs, 4 Bing. 729. 
 V. Colhy, 3 H. & N. 705. Gilkison v. Coicell v. Simpson, 16 Vesey, 275. Chase 
 Middleton, ante, p. 232. See Re Child, v. TTes/wore, 5 M. & S. 180. Craioshaicx. 
 43 L. J. B. 21, where the charterer became Homfrg, per Holeotd, J., 4 B. & Aid. 52. 
 insolvent and the ship had not commenced TJtompson v. Small, 1 C. B. 328. Alsager 
 her voyage, and it was held that there was v. St. Katharine's Dock Co., 14 M. & W. 
 no lien for money which was to be paid in 794. Foster v. Colhy, 3 H. & N. 705 ; 28 
 advance for freight, L. J. 81. Shand v. Sanderson, 4 H. & N. 
 
 (d) Smith V. Sievekina,4' E.&B.9io; 381; 28 L. J. Ex. 278. Tatnvaco v. 
 5 E. & B. 589. Gray v. Carr, infra. Simpson, 84 L. J. C. B. 268 ; 1 L. R, 
 
 (c) Per Watson, B., Foster v. Colby, 3 C. P. 363.
 
 5. WAIYEK, &C., OF LIEN. 
 
 235 
 
 If there be a special contract by the owner^ or the master, with Chap. 2. 
 
 his authority, for a particular time and mode of payment, and that 
 
 contract be inconsistent with the owner^s right to retain possession of 
 the goods, it will of course defeat a claim to exercise such right [y] . 
 
 {g) In a case already cited, and In which 
 the master, being authorized hy a charter- 
 party to sign bills of lading, at such freights 
 as might be required by the charterer and 
 his agents, had, by bill of lading, made the 
 goods deliverable to consignees, " or their 
 assigns, paying freight for the said goods 
 here ;" and, in the margin, " freight pay- 
 able in Liverpool " (the port of shipment) 
 " one month after sailing of the vessel, lost 
 or not lost ;" the owners' lien for the bill of 
 lading freight was upheld by the Court of 
 Common Pleas. GriUcison v. Middleton, 
 code, p. 232. On the authority of that case, 
 and in disregard of the circumstances which 
 }iad been urged in argument as distinguish- 
 ing it, the Court of Queen's Bench, in a case 
 in which, by the bills of lading, the 
 " freight" was " to be paid by the sliippers," 
 with a memorandum in the margin, "one 
 month after sailing, ship lost or not lost," 
 " to be taken from the ship's tackles, free," 
 — the ship having been put up by its 
 owners as a general ship, and the master, 
 therefore, their agent only, in signing the 
 bills of lading, held against assignees of 
 them, that the owners had not waived their 
 lien. Neish v, Oraham, 8 E. & B, A 
 decision, conflicting with the latter of these 
 cases, and in which, as in it, there was no 
 charter-party, was, however, about the 
 time of its determination, and before it and 
 Gilkison v. Middleton had been reported, 
 pronounced by Loi'd Wensleydale, de- 
 livering the judgment of the Judicial Com- 
 mittee of Privy Council ; by whom it was 
 held, on a bill of lading, containing this 
 form, "Freight for the said goods to be 
 paid by the shippers ; " and, in the margin, 
 " Freight payable one month after sailing, 
 ship lost or not lost ; " that, by thus stipu- 
 lating for a payment to be made in lieu of 
 freight by the shippers, at a time fixed, 
 irrespective of, and having no reference to 
 the safe delivery of the goods at their desti- 
 nation, the owners had waived their lien. 
 Sow V. Kerchener, 11 Moore P. C. C, p. 21. 
 To this decision, in a case subsequent to the 
 publication of the Reports of Gilkison v. 
 Middleton, and Neish v. Graham, and in 
 which, also, there was no charter-party, the 
 goods being made deliverable by the bills 
 of lading to "shipper's order or assigns, be 
 or they paying freight for them here;" 
 and, in the margin, " Payable at Liverpool" 
 (the port of shipment) " to E. M." (an 
 appomtee of the owners) " one month after 
 sailing, ship lost or not lost" — the Judi- 
 
 cial Committee, in a judgment pronounced 
 by Lord Kingsdowx, dissenting from both 
 those cases, and treating them as not dis- 
 tinguishable as respects the point in ques- 
 tion from each other, or from the case 
 before the committee, adhered. Kerchener v. 
 Venus, 12 Moore, P.C.C. 361. The mis- 
 chief ot perplexing the masters of ships in 
 their dealings with the holders of bills of 
 lading, and of misleading persons to whom 
 bills of lading may be offered by recogniz- 
 ing a lien for freight inconsistent with 
 express stipulations on the face of them for 
 payments, not for the consideration exe- 
 cuted of having carried the goods to their 
 destination, but, as was said in Blackei/ v. 
 Dickson, and Andrew v. Moorhouse, post. 
 Chap. 9 of this Part, "for taking the goods 
 on board, in order to their transportation," 
 seems to have been the ratio decidendi in both 
 the cases above stated, to have been deter- 
 mined by the Judicial Committee. Provisions 
 in bills of lading making freight payable by 
 consignees within a fixed time after ship- 
 ment, and at the port of shipment, are of a 
 natm-e to provoke inquiry. They will 
 generally be confined to cases, in which 
 notice of their issue may reach the master, 
 before he is called upon to make delivery. 
 Where freight is payable to charterers under 
 bills of lading, the question whether such 
 express stipulations have been madej and 
 if made, whether by authority of the owners, 
 and binding upon them, must frequently be 
 a question of construction, and without dis- 
 puting the principle which the cases in the 
 Privy Council establish, or that the case of 
 Neish V. Graham was within its range, a 
 doubt may be allowable whether the case of 
 Gilkison v. Middleton, was so. In that case, 
 the authority given by the charter-party to 
 the master, to " sign bills of lading at any 
 rates of freight the charterers might 
 require, without prejudice to this charter- 
 party," was specially and in the very sen- 
 tence which conferred it, qualified, by an 
 express reservation of the owners' lien on 
 the cargo for all freight due to him under 
 the charter-party ; there was no provision 
 in the charter-party extending that autho- 
 rity beyond the legal significance of the 
 words " at any rates oi freight ; " the cargo 
 on which the lien was claimed belonged to 
 the charterers, and there was nothing in the 
 bills of lading to affect the provision in 
 them making the goods deliverable at the 
 port of discharge " unto Messrs. Middleton 
 & Co. (the consignees), or their assigns,
 
 236 OF THE shipowner's lien for freight. 
 
 Part IV. When the payment is to be made by bills, tlie right of retention 
 continues until they are given^ and would_, it is conceived^ revive in 
 case of their dishonour^ before the shipowner had parted with the 
 goods (a) . Where the payment was to be made by approved bills, 
 and the owner objected to a bill delivered to him, but afterwards 
 negotiated it, it was held that he thereby lost the benefit of his objec- 
 tion, and his right to retain the goods {b) . 
 
 The master's being turned out of possession upon the vessel's 
 being captured, will not deprive him of his lieu for freight in case of 
 re-capture (c). 
 
 Where it appeared that the goods had been deposited in pursuance 
 of an Act of Parliament, in the ^East India Docks, or the ware- 
 houses of the East India Company, and notice given to detain the 
 goods or their proceeds for the freight, by which the lien of the owner 
 was preserved, — the company was considered to be the agent of the 
 owner for this purpose {d) . 
 
 6. Remarks on the Cases cited. 
 
 Notwithstanding the elaborate explanation by Tindal, C. J. in 
 Belcher v. Capper (e), of the principle on which the decisions referred 
 to in the third section of this chapter have proceeded, it is impossible 
 not to regret the uncertainty introduced by their almost irreconcile- 
 able conflict, into the construction of contracts of charter-party. The 
 maritime law, as far as it relates to the owners and masters of ships, 
 is founded upon the principle that the master is the servant of the 
 owner. As such servant, the master is entrusted with authority over 
 the property in his charge much more extensive than that which the 
 lessee of a vessel for a voyage or a term could have power to dele- 
 gate. In our law, also, he possesses the same authority. By the 
 master's contract with sub-freighters the power of a chartered ship is 
 bound j by his bottomry bond the ship itself may be pledged to an 
 extent much beyond the interest of the charterer ; to him is entrusted 
 
 tliey payiug f,el<jJit for the said o-ooils," (i) Horncastle v. Farraii, 3 B. & A. 497. 
 except the word " here," and in the margin See Behsliaw v. Bush, 11 C. B. 191. 
 the words " payable at Liverpool within a (c) Ex parte Clieesman, 2 Eden, 181. 
 mouth of the ship's sailing, lost or not " His being taken," said Lord Xortu- 
 lost," which seems rather to import a col- ingtox, "and by that means out of posses- 
 lateral agreement on the part of the cou- sion, can make no difference. The owner 
 signees, who were in that case represented received the ship on her arrival after the 
 by a partner at the port of shipment, to pay re-capture loco magMri, and as trustee for 
 if called upon, witlJin the time mentioned, the master. If he had voluntarily quitted 
 than au actual payment in lieu of freight, possession of the. ship, that would indeed 
 or, as in Neish v. Graham, Hoio v. Ker- have made a difference." Sedqucere; the 
 chener, and Kerchener v. femes, the liabi- master's right of lien is the right of the 
 lity to pay it, of any one other than the owner. 
 
 consignees or their assigns. — Mr, Justice (d) Faith v. East India Co., 4 B. & A. 
 
 Shee. 630. See post, 240. 
 
 (a) Stevenson v. BlaJcelocJc, 1 M. & S. (e) Ante,^.ZZQ. 
 535, and the observations of Gibbs, C. J., 
 in Sutton v. Bragg, 2 Marsh. 339.
 
 6. EEMAEKS ON CASES. 237 
 
 the certificate of registry on which the names of the proprietors and Chap. 2. 
 
 the incumbrances on their property in the ship appear ; for losses 
 
 occurring through his misconduct^ and the misconduct of the mariners 
 engaged by him, the owners are responsible to the extent of the 
 value of the ship and her freight ; and yet^ when it becomes neces- 
 sary to enforce the ordinary common- law security for that which 
 alone makes a ship valuable to her owner — the freight earned by 
 her — by dint of subtle distinctions between the contract of locatio rei 
 et operarum and the contract of locatio operis, the possession of the 
 master is made out not to be the possession of the owner. There 
 seems^ indeed, to be little ground for wonder, that, in most of the 
 cases which have been determined against the shipowner's lien for 
 freight, and against his liability for the acts of the master, learned 
 judges of eminent authority have been reluctant to acquiesce in the 
 decision. 
 
 Except in the case of a simple locatio rei (/) — the lease at a rent 
 of a ship, to be manned and navigated by the lessee, — every object 
 which a prudent merchant and a prudent shipowner can be supposed 
 to contemplate on entering into a contract of affreightment, would 
 be effected by considering the master to be the servant of the owner; 
 a relation between them which may well consist with the agency of 
 the master for the freighter, in his dealing with third parties. The 
 maritime law of France is founded, like our own, upon the doctrines 
 of the civil law ; and the incidents to the different descriptions of 
 the contract of hiring are not overlooked by the distinguished jurists 
 whose works in the French language we are accustomed to consult. 
 Pothier^ adverting, in his Treatise on Charter-parties, to the locatio 
 rei et operarum and the locatio operis, says, that the difference between 
 them is purely speculative, and that in both the obligations of the 
 master and the merchant are the same {g) . The contract of charter- 
 party to which the regulations of the ordinance of Louis the Four- 
 teenth, and of the Code de Commerce, apply, is a contract by which 
 the proprietor of a ship already manned and equipped for mercantile 
 adventure, engages to employ her in the service of the freighter in the 
 same way that the proprietor of a coach undertakes to carry goods or 
 passengers from place to place [h) . The services of the master and 
 mariners are contracted for and let with the ship ; but they do not 
 cease to be the servants of the owner, to whom all the rights, and 
 among them the right of retention for his freight, as well as all the 
 responsibilities of ownership, attach. 
 
 The Courts of the States of the American Union (i), on the other 
 hand, in their adoption of our refinements, have reaped for their 
 mercantile communities all the uncertainty attending them; and 
 there and here, as the law now stands, it will be useful for the ship- 
 
 (/) The cliarter-parties of the East India (i) This higlily vexed question, and so 
 
 Company appear to have been of this descrip- important in its consequences to the claim 
 
 tion. of lien, and the responsibilities of owner- 
 
 (ff) Charte-partie, p. 1, s. 5, p. 232. ship, depends on the inquiry, whether the 
 
 (h) Eogron, Code de Commerce, art, lender or hirer under a charter-party be 
 
 273, the owner of the ship for the voyage. It
 
 238 OF THE shipowner's lien foe freight. 
 
 Part IV. owner to remember^ that, although the exercise of his right of lien 
 may be upheld in cases of doubtful construction, an express contract 
 is the surest and strongest ground upon which that right can rest, 
 and that by inserting an agreement respecting it in the charter-party, 
 the parties to it may, between themselves, obviate all difficulty upon 
 the subject. 
 
 Thus, where it was expressly " agreed and understood between the 
 parties that the ownership of the ship should remain firmly and be 
 fully vested in the owner, and that he should at all times during the 
 said intended voyage and service have a full and complete lien upon 
 the lading of the ship, as well for all losses and damage which the 
 said owner might sustain or be put to in consequence of the nonpay- 
 ment of any of the bills to be given for freight as for all arrears of 
 freight, &c., and should have full power and authority to hold and 
 retain the said goods until full payment of all such losses, charges, 
 damages, and arrears of freight paid for or on account of the 
 charterer, and which he of right ought to bear and pay according 
 to the true intent of the charter-party,^' — the Court of Common 
 Pleas was of opinion that it was not necessary, for the purpose of 
 deciding a claim of lien set up by the shipowner, to consider whether 
 the possession of the ship remained in him, or had passed to the 
 charterer {a). 
 
 But even this precaution will not enable the master to assert a right 
 against the consignee of lien on goods for any greater amount of 
 freight or demurrage than is stipulated by the bill of lading or by 
 any contract between the charterer and the shipowner which by words 
 of reference may be incorporated with it {b). 
 
 In one case, where a cargo of guano was re-shipped in consequence 
 of the vessel in which it was first loaded becoming disabled and 
 incapable of conveying it to its destination, and the captain of the 
 disabled vessel entered into a new charter-party with the captain of 
 the vessel on board of which the cargo was re-shipped, a question 
 arose as to the extent of the captain's lien for freight under the second 
 charter-party. The defendants had chartered the ship Planter in 
 London to proceed from Liverpool to Callao and bring back a cargo 
 of guano, at 705. per ton freight, the master to be supplied in the 
 Pacific with a sum not exceeding 1,500/., which was to be deducted 
 from the freight and the balance paid in cash and by bills on arrival 
 at the port of discharge. Advances to the extent of more than 
 
 is a questiou, who by the charter-party has the voyage, he becomes the ownier, and is 
 
 the possession, command, and navigation of responsible for the conduct of the master 
 
 the ship. If the general owner retains the and mariners ; and the general owner has 
 
 same, and conti'acts to can-y a cargo on no lieu for the freight, because he is not 
 
 freight for the voyage, the charter-party the cari'ier for the voyage. Christie v. Leiois, 
 
 is a mere affreightment, sounding in cove- ante, p. 226. Kent's Com. and Mer. Law, 
 
 nant: and the freighter is not clothed with Edin. edition, p. 135 ; 2 Brod. & Bing. 410; 
 
 thecharacterorlegalrespousibility of owner- 8 Cranch's Rep. 49 ; 8 Vilieat. Rep. 605. 
 ship. The genei'al owner, in such a case, («) Small v. Moates, 9 Bing. 574. 
 
 is entitled to a lieu for his freight. But (b) Ante, p. 233 ; and see Smith v. Sieve- 
 
 where the freighter hires the possession, ^/«y, 5 E. & B. 589 j 24 L. J. Q. B. 257. 
 command, and navigation of the ship for
 
 6. EEMAEKS ON CASES. 239 
 
 1,000/. "were made by the defendants^ agents to tlie captain in the Chap. 2. 
 
 Pacific, After the Planter had sailed with her cargo she became 
 
 disabled, and was obliged to put back to Callao ; and her captain 
 chartered the Alarm in his own name to convey the cargo to Eng- 
 land at 70*. per ton. On arriving at the port of discharge, the 
 plaintiff, who was captain of the Alarm, demanded the whole freight 
 at 705. per ton as per charter-party, but the defendants claimed to 
 deduct the advances made to the captain of the Planter. The cargo 
 was by consent discharged without prejudice to the plaintiff's lien 
 upon it, and an action being brought for freight, the defendants 
 paid into court the balance due upon the original charter-party 
 between themselves and the captain of the Planter, after deducting 
 the amount of the advances made to him. '^A question/' said 
 CocKBURN, C. J., in delivering judgment, " presents itself which may 
 be open to some doubt; although the original shipowner may be 
 entitled, on account of the physical impossibility of conveying the 
 goods to their destination in the bottom originally contracted for, to 
 employ another to carry the goods and receive the freight, can he, 
 Avhen he parts with the possession of the goods, transfer his right of 
 lien to the substituted shipowner ? I by no means desire to be 
 understood as saying that he cannot ; it may be that the same rule 
 of law which empowers the original shipowner, under circumstances 
 of necessity, to tranship the goods, and by sending them to the place 
 of delivery in another ship, to retain his right to recover the freight, 
 as against the owner of the goods, gives also at the same time, as 
 incidental to this right, that of transferring also the lien which he 
 would have had upon the goods for the freight, if he had himself 
 conveyed them to their destination. But it is not necessary to decide 
 that question in the present case. It is enough to say that supposing 
 the right exists to transfer the lien under such circumstances, from 
 one shipowner to another, at all events the first can transfer to the 
 other no greater right of lien than he himself possessed. The utmost 
 that the plaintiff can claim if the second charter is considered, as it 
 must be, as one between Carlisle (the captain of the vessel) and him, 
 is to stand in the shoes of the original shipowners, for whom Carlisle 
 was acting. Then, what was the lien which these owners had at the 
 time when the goods were transferred ? not a lien on the goods for 
 the whole of the freight ; for considerable advances had been made on 
 account of the freight, and the lien of the owners of the Planter 
 remained only for the residue. The defendants were entitled to 
 demand the delivery of their goods, had they been in the hands of 
 the original shipowners, on the payment of the balance, and the lien 
 of such shipowners could exist only for such balance. The plaintiff, 
 who is substituted for the original shipowners, and stands in their 
 place, can be in no better condition ; and, therefore, on the payment 
 of the balance due on the original charter-party, the defendants were 
 entitled to the delivery of their goods in whosesoever hands they were 
 at the place of delivery. In addition to the sums paid on account 
 of freight to the plaintiff, the defendants claimed to deduct the 
 amount of the advances made to the master of the Planter, and on
 
 240 OF THE shipowner's LIEN POE FREIGHT. 
 
 Part IV. this action being brought they paid the amount of the balance into 
 
 court. I am of opinion that the plaintiff could have no lien beyond 
 
 that amount " (a) . 
 
 7. Enactments in the M. S. Act Amendment Act, 1862^ and 
 Customs Act. 
 
 rischargiug See 25 & 26 Vict. c. 63, ss. 67-78, noticed in the Appendix, which 
 
 cargo and give the master the means of discharging his cargo, retaining his 
 
 retaimug hen. y{q^ for freight, and other charges. 
 
 Customs Act. See also 39 & 40 Vict. c. 36 (the Customs Consolidation Act), s. 73, 
 by which " any officer of customs having the custody of any goods 
 which shall have come to his hands under the Customs Acts, may 
 refuse delivery thereof from the Queen''s warehouse or other place of 
 deposit until proof be given to his satisfaction that the freight due 
 upon such goods has been paid.^' 
 
 {a) Matthews v. Gibhs, 30 L. J. Q. B. 55.
 
 OP DEMURRAGE. 241 
 
 Chap. 3. 
 
 CHAPTER III. 
 
 OF demurrage; and herein, 
 
 Sect. 1. What Demurrage is, p. 241. 
 
 2. II020 Demurrage is to be coynputed, p. 243. 
 
 3. Construction of Stipulations respecting Demurrage, p. 246. 
 
 4. Soto Demurrage is regulated hy Usage in the absence of Express Stipula- 
 
 tions, p. 251. 
 
 5. When Demurrage ceases, p. 252. 
 
 6. RemarJcs on Cases relating to Demurrage, p. 253. 
 
 1. What it is. 
 
 [In charter-parties, clauses are usually inserted purporting that it 
 is covenanted and agreed between the parties that a specified number 
 of days shall be allowed for loading and unloading, and that it shall 
 be lawful for the freighter to detain the vessel for those purposes a 
 further specified time on payment of a daily sum. These clauses 
 constitute a contract on the part of the freighter that he will 
 not detain the ship for those purposes beyond the two designated 
 periods; and if he does so detain her, he is liable to an action on the 
 contract. 
 
 When goods are shipped on board a general ship, words are also 
 often introduced into the body or margin of the bill of lading, import- 
 ing 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 lor every day 
 afterwards. In such cases it has been decided, that the person claim- 
 ing and receiving the goods under the bill of lading is answerable for 
 this payment.] 
 
 The freighter in the former case is liable to pay, for every day the 
 ship is detained beyond the time agreed upon for loading or unload- 
 ing during the further specified time, the sum mentioned in the 
 charter-party, which is called demurrage. If a ship be improperly 
 detained by the freighter after the further specified time, the owner 
 may have an action for the damage resulting to him from such deten- 
 tion {b). In some cases the consignee or assignee of a bill of lading 
 is liable for demurrage upon a contract, express or implied, to 
 pay the same. In some cases the contract is implied by the party 
 
 (J) See Sorn v. Bensusan, 9 C. & P. 709. Kelt v. Anderson, 10 M. & W. 498, per 
 Abingeb, C. B.
 
 242 OF DE^ilUKEAGE — 
 
 Part IV. claiming and receiving the goods under the bill of lading {a). The 
 master of a ship who has undertaken by bill of lading to deliver 
 goods to the consignee " on payment of freight/' cannot maintain 
 an action against the consignee or assignee of the bill of lading, 
 on an implied contract to pay demurrage (b); an inconvenience 
 ■which may be a\'oided by the insertion of words in the body or 
 margin of the bill of lading, notifying in distinct terms that it is a 
 condition of the contract to carry and deliver the goods that the 
 consignee shall clear them in a certain number of days after the 
 ship's arrival, or pay so much per day for demurrage (c) . Sometimes 
 the terms of a charter-party are incorporated by reference to them in 
 the bill of lading ; most frequently as to freight only, in which case 
 the consignee or assignee of the bill of lading is not bound by any 
 other terms of the charter party than those which relate to freight. 
 If the reference be more comprehensive, e.g "against payment of 
 the agreed freight and other conditions as per charter-party,'^ and 
 the payment of demurrage be one of those conditions, the claim and 
 acceptance of the goods upon a bill of lading thus referring to them, 
 will be cogent evidence of a new contract by the consignee or assignee 
 of the bill of lading with the master to pay demurrage (f/), though not 
 if the demurrage be claimed for the detention of the ship at the port 
 of shipment, before the bill of lading is signed [e] . " Paying- for the 
 said goods as per charter-party,^'' has been held to mean — paying 
 freight for said goods as per charter-party (/). Limited references to 
 the charter-party, e.g. "on payment of freight as per charter-party;" 
 on payment of freight as agreed {g); or "on being paid for freight the 
 
 sum of , according to charter-party, and, in addition, the averages 
 
 according to maritime usage and custom;" have been held not to 
 extend to demurrage, although in addition to the last of these forms 
 in the margin of the bill of lading which contained it, the words, 
 " There are eight days for unloading in London,'^ were inserted. 
 This memorandum was said to be quite as consistent with the owner 
 of the vessel looking for payment of demurrage to the charterer as to 
 the consignee of the vessel. And it was thought to be a circumstance 
 
 (a) narman v. OandolpM, Holt's N. P. {d) Wegener v. Smith, 15 C. B. 285; 24 
 
 35, and Barman v. Clai-A; 4- Camp. 159. L. J. C. P. 25. See Russell v. Niemann, 
 
 Harman v. Mant, ibid 163. As to wheu 17 C. B. (n.s.) 163 ; 34 L. J. C. P. 10, 
 
 the indebitatus count miprbt be used before where it was held that the words "restraint 
 
 the Judicature Acts, see Cropton v. Picker- of princes" mentioned in the charter were 
 
 nell, 16 M. & W. 329. not incorporated by reference in the bill of 
 
 {b) Evans v. Foster, 1 B. & Ad. 118. lading. 
 
 Brouncker v. Scott, 4 Taunt. 1. Jesson v. (p) Chappell v. Comfort, 10 C. B. (n.S.) 
 
 Solly, 4 Taunt. 52. Stindt v. Soberts, 5 802 ; 31 L. J. C. P. 58. Orav v. Carr, 
 
 Dowl. & L. P. C. 460; 17 L. J. Q. B. 257. 40 L. J. Q. B. 257. 
 
 See Caivthron v. Trickett, 15 C. B. (n.s.) (/) Smith v. Sieveking, 4 E. & B. 945; 
 
 754. Meyer v. Dresser, 16 C. B. (n.s.) 24 L. J. Q. B. 257. 
 
 P- 646. (^) Young v. Moellei', 5 E. & B. 755. 
 
 (c) See the above cases, and Chappell v. 
 Comfort, 10 C. B. (n.s.) 802; 31 L. J. 
 C. P. 60.
 
 2. now COMPUTED. 243 
 
 of considerable weight against the implying o£ a contract to pay Chap. 3. 
 
 demurrage by the assignee of the bill of lading, that^ beyond a dubious 
 
 inference from the memorandum^ it contained no intimation to him 
 of any such liability. 
 
 It has been held also that a freighter who has entered into a contract 
 to pay demurrage^ is liable for it^ although the bill of lading has been 
 assigned before the ship's arrival, and the master had parted with the 
 goods without satisfaction of his lien {h) . 
 
 The questions which arose in some of these cases may probably be Liability by 
 of less frequent recurrence, for by statute it is now enacted — "That ^^'^^^]^^ ^^ 
 every consignee ot goods named m a bill of lading, and every en- contract in bill 
 dorsee of a bill of lading, to ivhom the property in tfie goods therein of lading. 
 mentioned shall pass {i),vpon or by reason of such consiynment or 
 endorsement, shall have transferred to and vested in him all rights of 
 suit, and be subject to the same liabilities in respect of such goods, 
 as if the contract contained in the bill of lading had been made with 
 himself '^ [k). 
 
 3. Hoiv demurrage is to be computed. 
 
 [The word " days,'' used alone in a clause for demurrage for un- Sundays, &e. 
 loading in the river Thames, is said to be understood of working days 
 only, and not to comprehend Sundays or holidays by the usage 
 among merchants in London (/); but it is much better to mention 
 working or running days expressly, according to the intention of the 
 parties.] If there be no usage to the contrary, and no express 
 exclusion of them, Sundays will be computed in the calculation {m) . 
 Where by a charter-party a specified sum is to be paid for each day 
 over and above the lying days, that sum is payable in respect of a 
 fraction of a day during which the ship is detained [n] . From what ^™™ '*^'^'^* 
 time the days begin to run depends on the terms of the contract ^'^^^"^ ^J^^^^j^ 
 under which the demurrage is payable. In the absence of express 
 stipulation on the subject, they are to be reckoned from the time of 
 the ship's arri^'al at the usual place of discharge in the port, and not 
 at the port, although for the purposes of navigation some of her cargo 
 may be discharged at the entrance (o) . If the usual place of discharge 
 be a dock, they will be calculated from the period of her arrival in 
 
 (h) Harrison v. Spaeth, 23 L. T. 155. (m) Brown v. Johnson, 10 M. & W. 331. 
 
 \i) See' Fowler v. Knoop, 48 L. J. Q. B. meman v. Moss, 29 L. J. Q. B. 206. 
 
 333 ; L. R. 4 Q. B. D. 299 (C. A.). In this (») Commercial Steam Ship Co. v. Boul- 
 
 case the charterers and shippers were the ton, 44 L. J. Q. B. 219; L. R. 10 Q. B. 
 
 same persons. 346. 
 
 (/t) 18 & 19 Vict. c. Ill, s. 1. See post, (o) Brereton v. Chapman, 7 Bing. 539; 
 
 p. 275. Tapscott v. Balfour, L. R. 8, C. P. 46, 
 
 (I) Cochran v. Methergh, 3 Esp. Rep. 
 121. 
 
 R 2
 
 244 OF DEMUEEAGE — 
 
 Part IV. tlie dock, and not of her coming to her berth (a). And where a 
 
 collier -which reached Gravesend on the 9th of March was detained 
 
 there by the harbour-master until the 20th, when she received an 
 order from him to proceed to the Pool — the ordinary place of discharge 
 for such vessels — it was held that the days of demurrage were to be 
 reckoned from her arrival there {b) . Where by a charter-party it 
 was agreed that the vessel should '^proceed direct to any Liverpool 
 or Birkenhead dock as ordered by charterers, and there load in the 
 usual and customary manner a full and complete cargo of coals/^ it 
 was the usual practice to load coal at the spout, but it was also not 
 unusual to load from lighter ; it was held that the lay days did not 
 begin until the vessel had entered the dock to which she had been 
 ordered by the charterers, but that they began at that time, and 
 were not postponed until the vessePs turn had arrived to go to the 
 spout (c). 
 
 It is competent, however, for the parties to the contract, to fix a 
 particular place for the discharge of the cargo other than the nsual 
 place of discharge at the destined port, or to provide, with a view to 
 probable contingencies, that the vessel shall discharge at one place 
 or another, according to circumstances, as may be directed by the 
 freighter, or as may seem best in the discretion of the master : in 
 the former case, the lay days will run from the ship^s arrival at the 
 place so fixed upon ; in the latter, they will run from the ship^s 
 arrival at the place selected by the freighter or master, in the exercise 
 of the option or discretion entrusted to him, although some part of 
 the cargo may not be discharged there. 
 
 Where a vessel took the ground on her way to a wharf at which she 
 was ordered to discharge, the lay days were held not to commence till 
 she got off and reached it {d). But where a vessel was to unload at a 
 certain wharf, or as '' near thereto as she could safely get,^^ and she 
 was prevented from getting nearer to the wharf than three hundred 
 yards for some days by want of water, it was held that the master was 
 bound to take his ship alongside the wharf; the object being to pre- 
 vent the expense of lighters, and that the lay days did not commence 
 until her arrival at it (e) . 
 
 The plaintiffs, owners of the ship Lusitania (/), and the master, 
 agreed with the defendants to convey a cargo to Oporto, and if the 
 master should think it possible to enter the port without risk from 
 
 (a) Brown v. Johnson, 10 M. & W. 331. Lawson v. Burness, 1 H. & C. 396, per 
 
 As to parol evidence of custom of the port Pollock, C. B. 
 
 of arrival as to when a ship is considered {d) Parker v. Winloio, 7 E. & B. 942 ; 
 
 to have arrived, see ante, p. 210. 27 L. J. Q. B. 49. 
 
 {h) Kell V. Anderson, 10 M. & W. 498. {e) Bastifell v. Lloyd, 1 H. & C. 388; 
 
 Parker v. Winloio, 7 E. & B. 942. 31 L. J. Ex. 413; and see Lindsay v. Jan- 
 
 (c) rapsco«v.^rt//o!(/-,42L. J.C.P. 16; son, 4 H. & N. 699; 28 L. J. Ex. 315; 
 
 Leidemann v. Sclmltz, 14 C. B. 38; 23 Capper v. Wallace, 49 L. J. Q. B. 350. 
 
 L. J. C. P. 17; Davies v. WVeagh, 48 (/) Gihlonsv.Bti Biiisson,l'Qmg.'S.C. 
 
 L. J. Ex. 686, C. A, The words " custo- 283 ; 1 Scott, 133. S^-e also Ba ley v. Be 
 
 mary manner " mean mode of loading, la Arroyave, 7 Ad. & El. 919, and Jackson 
 
 whether by a lighter or at the wharf. v. QaUoivay, ante, p. 183.
 
 2. HOW COMPUTED, 245 
 
 the batteries, to discharge the cargo there ; but if not, the master Chap. 3. 
 bound himself to proceed off the castle of the Foz, or to some other 
 point near the bar where the vessel could lay in safety, and there 
 discharge into boats, which the freighters bound themselves to send 
 alongside the vessel; to be paid freight in full for the voyage the sum 
 of 475/. ; or if the vessel could enter Oporto, discharge and reload 
 there, then in lieu thereof, the sum of 300/. ; twenty-five working- 
 days to be allowed the said merchants for unloading the cargo ; lay 
 days to commence when the ship was off the castle of the Foz, or 
 other point where she was to he discharged ; continue whilst there, 
 cease if blown off the coast by stress of Aveather, and re-commence 
 when again at anchor at her station ; 4/. per day demurrage for every 
 day over and above the said lay days. 
 
 The ship sailed from London on the voyage mentioned in the 
 charter-party, and arrived off the harbour of Oporto on the 3rd of 
 June. The harbour of Oporto is about two or three miles up the 
 river Douro. When the ship so arrived, the Miguelites were in 
 possession of batteries on each side of the entrance of that river, and 
 it was not possible for her to enter the port without great risk and 
 danger. She was accordingly brought up in the roads, off the castle 
 of the Foz, just beyond the range of the Miguelite batteries. The 
 ship remained at anchor in the roads, and delivered part of the cargo, 
 from time to time, as it Avas sent for by the consignee, until the 14th 
 of August, Avhen strong winds and squally weather obliged the captain 
 to slip his cable, for the preservation of the ship. He brought her 
 up again to the same anchorage on the next morning, and remained 
 there until the 18th of August, when, having sustained some damage 
 from the impact of another ship, he, to avoid further danger, stood 
 out to sea, with about one-eighth of her cargo undischarged. The 
 gale continuing, the Lusitania could not return to her former anchor- 
 age until the 25th of August. The Miguelites had then abandoned 
 the batteries, and the river was opened, but there was not sufficient 
 wind and tide to enable the ship to cross the bar. The next day, the 
 Lusitania went up the river, and came to anchor in the harbour of 
 Oporto, where the residue of the cargo was delivered to the order of 
 the consignee. 
 
 On these facts it was contended for the defendants, that the port 
 of discharge was Oporto, and tliat the lay days must commence from 
 the time of her arrival there. The plaintiffs claimed demurrage from 
 the expiration of twenty-five days after the arrival of the ship off the 
 castle of the Foz, where, as they urged, she was substantially dis- 
 charged. " It is contended,^' said Chief Justice Tindal, " that the 
 vessel was to discharge at Oporto, and that the lay days were not to 
 commence till she was at the place of discharge ; but they are not so 
 limited by the language of the charter-party, for they are to commence 
 at the castle of the Foz, or other point where the vessel is to be dis- 
 charged — to cease if the vessel be blown off the coast, and commence 
 again on her regaining her station.^'
 
 2-4-G OF DEMUfiEAGE 
 
 Part IV. 
 3. Construction of Stipulations respecting Demurrage [a). 
 
 [When a ship is detained beyond the time thus limited and ascer- 
 tainedj the daily rate o£ demurrage mentioned in the charter-party 
 •will in general be the measm'e of the damages to be paid^ but it is 
 not the absolute or necessary measure ; more or less may be payable 
 as justice may require^ regard being had to the expense and loss 
 incurred by the owner, and the amount must be settled by a jury 
 if the parties cannot agree {b). And where the time is thus 
 expressly ascertained and limited by the terms of the contract, the 
 merchant will be liable to an action for damages if the thing be not 
 done within the time, although this may not be attributable to any 
 fault or omission on his part — for lie has engaged that it shall be 
 done (c). If the merchant be the author of the delay by which ex- 
 penses are afterwards occasioned, those expenses will fall upon him {d). 
 Many vessels are now obliged by law to unlade at particular docks in 
 the river Thames; and in many cases the law allows the importer to 
 warehouse his goods at such docks for a certain time under security 
 given for the payment of the import duties, instead of removing them 
 into his own custody, and discharging the duties immediately; which 
 is often a matter of great convenience to the importer, and has become 
 the usual practice. It has sometimes happened, from the great resort 
 of vessels to these docks at particular seasons, that considerable delay 
 has taken place in the unloadiug, especially where the goods are to be 
 warehoused; and it has been questioned whether the merchant should 
 answer for such delay; and according to the principle above laid 
 down, it has been twice held that he must answer by reason of the 
 terms of his contract. On two occasions some stress was laid on the 
 circumstance of warehousing the goods, it being understood that, if 
 the importer had chosen to take them from the docks immediately, 
 the delay would not have happened (e). On another occasion this 
 circumstance does not seem to have been noticed (/) . The general 
 rule appears to be, that if the merchant covenants to do a particular 
 act which it becomes impracticable for him to do, he must answer for 
 his default, unless the act be or become contrary to the laws of his 
 country, as a trading Avith an enemy,] 
 
 (fl) As to loading and unloading by Exchequer Chamber, reversing the decision 
 charterer, see ante, p. 189. of the Court of Exchequer, that he was 
 (jb) Moorsom v. Sell, 2 Campb. 616. justified in so doing, and that his owners 
 (c) A charterer who had declined to -were entitled to recover for tlie ship's de- 
 accept the shipper's drafts and take up bills tention during the demurrage days, and 
 of lading in the hands of the shipper's for some days beyond them which were 
 agent, on the ground that the goods were consum^d in unloading her. Erichsen v. 
 not according to contract, sought to escape Barkworth, 3 H, & N. 894; 28 L. J. 
 liability for demurrage by giving notice to Ex. 95. 
 
 the master of the dispute, and oifering to (rf) The Angerona, Marks, 1 Doda, Adm, 
 
 prevent the delay of the ship by receiving Etp. 382. 
 
 the cargo for whom it might concern j but (e) \^Sirv.ch v. Tenant, cor. Mansfield, 
 
 the master having received notice from the C. J., Sit. at Guildhall after Trin. Term, 
 
 shipper's agent not to deliver the goods 1806; and Leer v. Yates, 3 Taunt. 387.] 
 
 except on production of the bill of lading, (/) Randall v. Lynch, post, p. 247, 
 declined the offer, and it was held in the
 
 3. CONSTRUCTION OF STIPULATIONS EESPECTING. 247 
 
 The case of Randall v. Lynch [g) is a leading case upon tins Chap. 3. 
 point. It was an action on a charter-party for a voyage to Lan- 
 ceretto, and back to London, in which it was covenanted that the 
 vessel, after taking in her lading, should proceed direct to the port of 
 London, and upon arrival at the London Docks, and after regular 
 report at the Custom-house, should discharge the said cargo, and 
 there end and complete the voyage ; that forty days should be allowed 
 for unloading, loading, and again unloading the cargo ; and that the 
 freighter might further detain the vessel at his option for ten working 
 days, upon paying 5/. per day demurrage. The breach alleged was, 
 that the freighter had detained the vessel in the London Docks for 
 thirty-five days beyond the ten days last mentioned. The defence 
 was in a narrative of the circumstances of the case. It appeared 
 that the ship arrived from Lanceretto in the London Docks on the 
 10th of August, in the year the action was brought, and was reported 
 next day at the Custom-house. The forty days stipulated in the 
 charter-party for unloading the outward cargo, and loading and 
 unloading the homeward cargo, expired on the 22nd of August; 
 but on account of the crowded state of the docks, her discharge could 
 not then be begun, and it was not finally completed till the 6tli of 
 October, being about thirty-one days after the expiration of the ten 
 days during which time she might be kept on demurrage at 5/. per 
 day. Under these circumstances, it was contended by the counsel for 
 the defendant that this delay was not in any degree to be imputed 
 to him, but to circumstances over which he had no control, and, 
 therefore, that he could not be liable, where there was neither wilful- 
 ness nor negligence. But Lord Ellexborough held, that the deten- 
 tion of the ship, arising from the inability of the London Dock 
 Company to discharge her, was, in point of law, imputable to the 
 freighter ; that the person who hires a vessel must be considered as 
 detaining her, if at the end of the stipulated time he does not restore 
 her to the owner. " He is responsible for all the various vicissitudes 
 which may prevent him from so doing. While the goods remained 
 on board the vessel in the Loudon Docks, it was impossible for the 
 plaintiff to make any use other; and to all intents and purposes she 
 was there detained by the defendant. When she was brought into 
 the docks, all had been done which depended upon the plaintiff, and 
 the Dock Company were the defendant's agents for her delivery. The 
 defendant was as much responsible for a delay arising from the want 
 of a berth, as if it had arisen from tempestuous weather, or any other 
 cause.'' 
 
 In the case oi Leer v. Yates (h), a general ship took brandies on 
 board under bills of lading, which allowed tn'cnty lay days for the 
 deliveiy of the goods in London, after arrival, and stipulated for 41. 
 per day demurrage afterwards. 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 alter the twenty days ; and 
 
 (ff) 2 Campb. 356 ; aud 12 East, 179. Porteous v. Watnei/, 47 L. J. Q. B. 365, 
 
 (^) 3 Taunt. 387; Stmker v. Kidd, 643; L. E. 2 Q. B. D. 223, 534.
 
 248 OF DEMURRAGE 
 
 Part IV. some of the goods wliich were undermost could not^ tliough demanded^ 
 be taken out till the upper tiers were cleared. The Court of Common 
 Pleas^ notwithstanding, decided that each of these consignees was 
 liable, on a general count for demurrage, to pay the 41. per day for 
 the forty-six days. Mansfield, C. J., said, " I was struck with the 
 argument that it Avas not the fault of the defendant, but the fault of 
 the plaintiff himself that these goods could not be got out until other 
 goods which lay above them were delivered. But it is not, in truth, 
 the fault either of the plaintiff or the defendant that the goods could 
 not be taken out. There can only be so many goods on the top of 
 the vessel as the proper stowage of the goods will allow — therefore, 
 all the others must be at the bottom ; and as this is a general ship, 
 and the goods do not all belong to the same consignee, the goods of 
 some of the consignees must be undermost. If this argument would 
 avail, therefore, that the captain was not entitled to demurrage for 
 the goods which were not uppermost, it would restrain the contract 
 for demurrage to the few persons whose goods were at the top ; but 
 that construction would be contrary to the positive contract, for it is 
 impossible to get out of the Avords of this bill of lading.^-' 
 
 A general ship (a) took some silks on board to carry from Rotterdam 
 to London on defendant's account, and upon the margin of the bill of 
 Jading, which he excepted, Avas written, " the consignee to clear the 
 goods in fourteen running days after her arrival in port, or to pay 41. 
 per diem for demurrage."-' The defendant applied for and was ready 
 to receive his goods Avithin the running days, but, being undermost in 
 the vessel, the delivery thereof could not be made until some days 
 afterwards, "The consignee,'-' said Gibbs, C. J., "by taking to the 
 goods, contracts Avith the owners of the vessel to perform the terms 
 upon Avhich they have undertaken to convey and deliver them. Those 
 terms are expressed in the bill of lading, and the defendant, by 
 claiming and receiving the silks under the bill of lading, has acceded 
 to those terms. Each consignee undertakes to clear away his goods 
 in a certain time ; and, although by the default of others he is pre- 
 vented from so doing, he is liable to pay demurrage by the terms of 
 the contract, unless the delay be occasioned by the fault of the captain 
 or his crew.-" 
 
 ["The merchant," according to the language of Lord Ellen- 
 borough {b), "is the adA^enturer who chalks out the A^oyage, and is to 
 furnish at all events the subject matter out of which the freight is to 
 accrue.'' And upon this principle it Avas held, that a merchant who 
 had covenanted to furnish a cargo at Gibraltar within a limited time, 
 but was prevented from doing so by a prohibition of intercourse with 
 that shore on account of an infectious disease, Avas ansAverable in 
 damages to the owner. This subject will be more fully noticed in a 
 following chapter (c) . But, on the other hand, where, by the terms of 
 the contract, the merchant was to be allowed the usual and customary] 
 
 (a) Barman v. GandolpM, Holt, N. P. (J) Barker v. Sodgson, 3 M. & S. 267. 
 
 35. See Sogers v. Hunter, 2 C. & P. 601 j (e) On the Dissolution of Contracts, j?oj<, 
 
 Dobson V. Droop, 4 C. & P. 112. Part IV., Chap. 12.
 
 3. CONSTRUCTION OF STIPULATIONS EESPECTING. 249 
 
 [time to unload the vessel at her port of discharge, it was held that he Chap. 3. 
 was not answerable for a delay of this sort, although great part of it 
 was owing to his election to warehouse and bond the goods, that 
 appearing to be the usual practice with regard to cargoes of the like 
 description {d). The same law was laid down with respect to a con- 
 signee of goods sent in a general ship without any stipulation on this 
 subject in the bill of lading (e).] 
 
 In conformity with these decisions, it has been determined, that 
 delays in loading a vessel beyond her running days, occasioned by 
 frost (/), or by the prohibition of a foreign government to export the 
 stipulated cargo {g), or by Custom house regulation or restraints {h), 
 or by unlawful seizure of part of the cargo by Custom-house 
 officers (i), or by alterations in the ship necessary to receive the 
 cargo, the shipment of which was to be at the shipper's expense, are 
 misfortunes and casualties which fall upon the freighter {k). He 
 might have protected himself by express stipulation. He might have 
 limited his engagement to pay demurrage to cases of wilful or negli- 
 gent detention. For delays occasioned by the wrongful act of others, 
 he has his remedy against them ; but unless they be caused by the 
 shipowner himself, the freighter or consignee must pay demurrage 
 according to his contract (/). 
 
 It is no answer to this claim for the consignee to allege that he did 
 not receive notice of the arrival of the ship [m) within the time stipu- 
 lated by the bill of lading for the discharge of the cargo, for it is his 
 duty to inquire for and watch the ship's arrival ; or that he did not 
 
 {d) Rogers v. Forrester, 2 Cainpb. 483. implies that the merchant and the shipowner 
 
 (e) Biirmester v. Hodgson, 2 Campb. shall each use reasonable dispatch in per- 
 
 488 ; post, 252. forming his part of the contract; and where 
 
 (/) Barrett v. Button, 4 Campb. 333 ; the landing of the cargo by the merchant 
 
 otherwise if ship detained by frost after she is rendered impossible by a cause over which 
 
 is fully loaded. Bringle v. Mollett, 6 M. he has no control, he is not liable to pay 
 
 & W. 80; Kearon v. Pearson, 7 H. & N. damages for the delay. A ship sailing 
 
 386; Bastifelly. Llot/d, 1 H. & C.38S; Tiis under a charter-party, which was silent as 
 
 V. -S^era, 45 L. J. Q. B. 511; L. E. 1 Q. B. D. to the number of days to be allowed for 
 
 244; see Hudson v. Ede, 36 L. J. Q. B. imloadiug, arrived at a foreign port, and 
 
 273; 37 L. J. Q. B. 166; L. R. 2 Q. B. was detained beyond the usual time, owing 
 
 566 ; 3 Q. B. 412, where it was held that to the refusal of the authorities to allow 
 
 certain delay was within a provision in the the cargo to be landed — Held, that the 
 
 charter-party as " to detention by ice," and merchant was not liable to pay damages 
 
 that the loss must fall on the shipowner for the delay, as he had not contracted that 
 
 and not upon the merchant ; and see Fen- there should be none, and it had happened 
 
 wick V. Schmalz, 37 L. J. C. P. 78, where without fault on his part. Ford v. Cotes- 
 
 it was held in an action against a charterer worth, 39 L. J. Q. B. 188; L. R. 4 Q. B. 
 
 for not loading, that a snow storm was not 127. 
 
 "an accident" within the following excep- {I) Beech v. Balleras, 29 L. J. Q. B. 
 
 tion, "except in cases of riots, strikes, or 261. 
 
 any other accidents beyond his control, {m) Harman v. ClarJce, 4 Campb. 159 ; 
 
 which may prevent or delay her loading a Harman \. Mant, 4 Campb. 234; see Stan- 
 
 full and complete cargo of coals." ton v. Austin, 41 L. J. C. P. 218, where 
 
 {g) Blight v. Page, 3 B. & P. 295. in an action for not loading pursuant to 
 
 (A) Hill V. Idle, 4 Campb. 137. charter-party, a plea which stated in sub- 
 
 (») Bessey v. Evans, 4 Campb. 131. stance that the defendants were ready to 
 
 {k) Barker v. Hodgson, 3 M. & S. 270, load, but that by reason of want of notice 
 
 Where a charter-party is silent as to the of ship's arrival, and that she was ready to 
 
 time within which the cargo is to be un- receive cai'go, the defendants were prevented 
 
 loaded at the port of destination, the law loading the vessel, was held good.
 
 250 , OF DEMUEEAGE — 
 
 Part IV. receive the bill of lading in time, and that the master insisted on its 
 being- produced, or on an indemnity, for the master had a right so to 
 insist for his own protection (a) ; but if the delay was occasioned by 
 the refusal of the owner to allow the ship to be unloaded [h], or by 
 his neglect, or even inability, from unavoidable accident, to obtain 
 the necessary clearances for sailing (vvhicli it his duty to obtain), 
 then he, and not the freighter, is the cause of the delay, and must 
 bear the loss resulting from it (c), unless indeed he omitted to apply 
 for them at the request of the freighter or consignee [d] . 
 
 The owner has no claim of this sort for a delay occasioned by 
 an hostile occupation of the destined port, although, after such delay, 
 it may be found expedient entirely to abandon the voyage, and thereby 
 the whole employment of the ship becomes unprofitable (e). 
 
 Where by a charter-party seventy days were to be allowed a ship, 
 which was to touch and take in goods at several ports, for loading, 
 discharging, and reloading, it was held that the word reloading limited 
 the discharge to a time before reloading, and that therefore the limit 
 of days did not apply to the timq taken up in unloading the cargo at 
 the end of the voyage (/). 
 
 But when a charter-party for a voyage from Genoa, where the ship 
 was, to Monte Video, and thence to Callao and the Chincha Islands, 
 and back to a port of the U. K., after specifymg certain running and 
 lay days, contained this proviso, "should the vess?l be unnecessarily 
 detained at any other period of the voyage, such detention to be paid 
 for by the party delinquent to the party observant at a specified rate 
 of demurrage" — it was held that the words '' other period of the 
 voyage" did not include Genoa, and that a detention there was not 
 within that clause {g). 
 
 By charter-party it was agreed that the plaintiff's ship should go 
 to a port, and there " load in regular turn" a cargo from the defen- 
 dants. On her arrival, the defendants made default in supplying 
 cargo, whereby she lost one turn. Wind afterwards came on to 
 blow, and the harbour-master therefore would not allow the ship to 
 take up her loading berth for three days more : — Held, that the default 
 of the defendants was the proximate cause of the detention during 
 those three days, and that the plaintiff was entitled to damages as 
 demurrage in respect of them (A) . 
 Clause as to As to a charterer not being liable for demurrage after he has loaded 
 cesser of the cargo, where there is a clause in the charter-party for the cesser 
 la )ility. q£ j^-j^ liability under the same as soon as the cargo is on board, see 
 
 ante, p. 178. 
 
 {a) Jesson v. Solly, 4 Taunt. 52 ; see {d) Furnell v. Thomas, 5 Bing. 188. 
 
 ante p. 181. (e) Liddard v. Lopez, 10 East 526. 
 
 (i) Benson v. Blunt, 1 Gale & D. 449 ; (/) Sweetinci v. Darthez, 28 L. J. C. P. 
 
 See Erichsen v. Barkworth, 1 H. & N. 894 ; 131. 
 
 28 L. J. Ex. 9oj Tai/lorv. Clai/, 9 Q. B. 718. (g) Valente v. Gihls, 6 C. B. (s. s.) 270. 
 
 (c) Barrett v. Button, 4 Campb. 333 j See Croiox. Falk, 8 Q. B. 467; Bruce r, 
 
 aud see Kearon v. Pearson, 7 H. »& N. 386; Nicolopulo, 24 L. J. Ex. 321 ; Barker v. 
 
 31 L. J. Ex. 1, as to a stipulation for the Mc Andreic, 34 L. J. C. P. 191. 
 
 loading of the cargo with the usual des* (A) Jonfs v. Adamson, 45 L. J. Q. B. ic, 
 
 patch. 64; L. E. 1 Ex. D. 60.
 
 4. HOW REGULATED BY USAGE. 251 
 
 Chap. 3. 
 
 4. Hoiv Demurrage is regulated by Usage, in the absence of 
 Express Stipulations. 
 
 For the eventual hardship or uuprofitableuess of the engagement 
 into which the merchant or freighter has entered he has himself alone 
 to blame ; the law in all these cases does but enforce the performance 
 of his own contract. He might have bound himself by terms less 
 stringent, and capable of a more liberal interpretation in his favour ; 
 or, by avoiding all express stipulations on the subject, he might have 
 allowed the law, in case of dispute, to determine, with reference to 
 the course of the particular trade, or the usages of the particular 
 port, what would, under all the circumstances of the case, be reason- 
 able and just. 
 
 Thus, where in a charter-party it was covenanted that the freightei*, 
 the defendant, should unload the ship ivithin the usual and accustomed 
 time, it appeared that the ship Margaret entered the London Docks 
 with her homeward cargo on the 25th of August, and was reported 
 the following day ; on the 31st of the same month, her cargo, con- 
 sisting of wines, was bonded by the defendant, and he was ready to 
 have received it if it could have been unloaded, but on account of 
 the crowded state of the London Docks at this time the ship could 
 not get a berth till the 20th of October, and was not fully discharged 
 till the 26th of that month. If the duties had been immediately 
 paid upon the wines, they might have been landed in a much shorter 
 time; but the superintendent of the London Docks said he had 
 never, since the bonding system was introduced, known a cargo of 
 wines brought by a ship so large as the Margaret landed and delivered, 
 but that such cagoes had always been bonded. It was contended that 
 the duties ought to have been immediately paid — that the freighter 
 was liable for the detention of the ship beyond the time when she 
 might have been discharged ; and the case of Randall v. Lynch was 
 cited as an authority for that position. But Lord Ellenborough 
 said, " In that case a specific period of forty days had been fixed by 
 the charter-party for loading and unloading the cargo. The stipula- 
 tion in the present case is, that the freighter shall be allowed the 
 usual and customary time to unload the ship in her port of discharge. 
 The question therefore is. What is the usual and customary time for 
 a ship to unload a cargo of wines in the port of London? The 
 answer seems to be, when the ship gets a birth by rotation, and the 
 wines can be discharged into the bonded warehouses. The wines 
 might have been landed sooner by an immediate payment of the 
 duties ; but since the bonding system was introduced this has 
 ceased to be the usual and customary mode of unloading a 
 cargo '^ {i). 
 
 (!) Rofjers v. Forresier^ 2 Carapb, 483, see ante, p. 189.
 
 252 OF DEMUEEAGE — 
 
 Part IV. Thus, again, in the case of Bunneste?' v. Hodson (a), the defendant 
 was the consignee of a cargo of brandy from Charente to London, 
 by the ship Athalia, of which the plaintiff was the master. The bill 
 of lading contained no stipulation for demurrage, or for unloading 
 the brandy in any specific time. The ship entered the London Docks 
 on the I9th of August, 1809, but as the docks were extremely 
 crowded, and the brandy was to be bonded, she was not able to begin 
 to unload tmtil the 11th of October, and did not discharge the whole 
 of her cargo until the 19th of the same month, making a period of 
 sixty-three days from the time she entered. Evidence was given 
 of an invariable practice to bond cargoes, and that when the docks 
 were not over-crowded, twenty or twenty-three days Avere a sufiicient 
 space of time for unloading. The plaintiff insisted that he was 
 entitled to a compensation in the nature of demurrage, from the 
 time the ship might have been unloaded till she was completely dis- 
 charged. 
 
 But Mansfield, C. J., said, ^' This case cannot be distinguished 
 from Rogers v. Forrester. Here, the law could only raise an implied 
 promise to do what was there stipulated for by an express covenant — 
 namely, to discharge the ship in the usual and customary time for 
 unloading such a cargo. That has been rightly held to be the time 
 within Avhicli a vessel can be unloaded in her turn into the bonded 
 warehouses. Such time has not been exceeded by the defendant. If 
 the brandies were to be bonded, they could not be unloaded sooner ; 
 and the defendant seems to have been as anxious to receive as the 
 plaintiff was to deliver them.^^ 
 
 5. When Demurrage Ceases. 
 
 [The payment of demurrage, stipulated to be made while a ship is 
 waiting for convoy, ceases as soon as the convoy is ready to depart ; 
 and such payment, stipulated to be made while a ship is waiting to 
 receive a cargo, ceases when the ship is fully laden, and the necessary 
 clearances are obtained, although the ship may in either case happen 
 to be further detained by adverse Avinds or tempestuous weather [b); 
 and if the ship has once set sail and departed, but is afterwards 
 driven back into port, the claim of demurrage is not thereby 
 revived (c) . 
 
 By a charter-party, the owner covenanted that the ship should 
 take a cargo at a port, and proceed with the first convoy that should 
 sail for England fourteen working days after she was ready to load; 
 and the merchant covenanted to load and despatch her within four- 
 teen days after notice that she was ready to load, Avith liberty, how- 
 ever, to detain her 15 running days after the expiration of the 14,] 
 
 (a) 2 Campb. 488 ; Ford v. Cotesworth, See further as to waiting for convoys, Mar- 
 ante, 249. shall v. Be la Torre, 1 Esp. 367. 
 
 (6) Lannoy v. Werry, 2 Bro. P. C. 60. (c) Jamieson v. Laurie, 6 Bro. P. C. 
 
 p. 472, 2ud ed.
 
 t 
 
 6. KEMARKS ON CASES, 253 
 
 [paying 4 guineas per day demurrage. Tlie first convoy sailed after Chap. 3. 
 
 the 14 days were expired, but before the termination of the additional 
 
 15 days. No other convoy sailed until nearly 2 months after the 
 first. Under these circumstances, the owner sued the merchant for 
 the demurrage, and also for compensation for the detention of the 
 vessel beyond the 15 days ; but it was held that the merchant was not 
 liable for the latter, and that the parties were in the same condition 
 at the end of the 15 days as they would otherwise have been in at the 
 end of 14 days {d) .] 
 
 6. Remarks on Cases relating to Demurrage, 
 
 The decisions in Bandall v. Lynch, Leer v. Yates, and the cases 
 which followed upon them, have been the subject of much doubt and 
 controversy among merchants and lawyers. That the consignee of 
 goods brought by a general ship should be liable for the delay of 
 those for Avhose diligence he has not stipulated — over whom he has 
 no control — between whom and himself there is no connexion but 
 that which the contract of the shipoAvner with them has created, does 
 certainly appear a case of peculiar hardship. Why should one man 
 pay for the neglect of another ? Because, it is answered, he has con- 
 tracted to do so. But the question is, Whether it be not a condition of 
 the contract into which he has entered, to clear the goods within the 
 time specified in the charter-party or bill of lading, that the master 
 should be ready to deliver them, and whether that condition can be 
 considered as performed, Avhile the goods, without any fault of the 
 merchant, continue inaccessible (e) ? It seems that the above cases 
 were correctly decided. (See Porteus v. Watney, ante, 247.) 
 
 The master of a chartered ship has authority to settle a claim 
 arising at a foreign port for detention beyond the period for which 
 the rate of demurrage is stipulated (/) . 
 
 {d) Connor v. Smythe, 5 Taunt. 654; (/) Alexander v, I)o^vie,\YL. Si, T^.IZZ; 
 
 1 Mars. 276. 25 L. J. Ex. 281. 
 
 (e) Rogers v. Hunter, 1 Mo. & M. 63 ; 
 Dobson V. Broojp, 1 M. & M, 441,
 
 254 COXTEACT FOR CONVEYANCE IN A CIENEEAL SHIP. 
 
 Part IV. 
 
 CHAPTER IV. 
 
 OF THE CONTRACT FOR CONVEYANCE OF MERCHANDISE IN A 
 GENERAL SHIP ; AND HEREIN, 
 
 Sect 1. T7ie umal mode of entering into this Contract — ly loTiai Imo construed, p. 254. 
 
 2. Of Bills of Lading — their Form, Signature, and Effect, p. 256. 
 
 3. To lohom the Masters and Owners are responsible on Bills of Lading. Cases 
 
 of Conditional Consignment, the Condition heing unperformed, considered, 
 p. 261. 
 
 4. Cases of Conditional Consignment, the Condition having been performed, 
 
 p. 270. 
 
 5. Of the Effect of Bills of Lading, transmitted as Security for Advances, or to 
 
 indemnify against Acceptances, p. 271. 
 
 6. Of Actions by Consignees, being only Agents of the Owners of Goods, p. 272. 
 
 7. Assignment of BUI of Lading — effect of same, 274. 
 
 8. Bemarks on Cases cited, p. 277. 
 
 9. Description of Goods in Bills of Lading, p. 278. 
 
 10. AUmii-alty Cases. Consignors' or Enemies' Property, p. 279. 
 
 1. The usual Mode of Entering into this Contract. By ivhat 
 Law construed. 
 
 [The contract for the conveyance of mercliandise in a general 
 ship, is that by which the owner and master of a ship {a), destined 
 on a particular voyage, engage separately with various merchants 
 unconnected with eacli other, to convey their respective goods to 
 the place of the ship''s destination. It has been already shown [b) 
 that this contract, although usually made personally with the master, 
 and not with the owners, is considered in law to be made with them] 
 
 (a) Or the charterer and master. long as the master remained in the service 
 
 (i) Ante, p. 175. A shipowner is liable of the owners, he might be presumed by 
 
 for the loss of goods delivered in the ordi- those who shipped goods in ignorance of 
 
 nary course to those in charge of the ship the arrangement as to the charter of the 
 
 to be loaded, though the goods are not put vessel to possess the authority to sign bills 
 
 on board. The British Columbia, ^'c, of lading as agent of the owners, who were 
 
 Co.x. Netlleship,^! h.i.C¥.'22>h. Where thereloie responsible to such shippers for 
 
 a ship was sailing under a charter-party, improper stowage. Sandeman v. Scurr, 
 
 and there was no demise of the ship to the 36 L. J. Q. B. 58 ; Wagstuff v. Anderson, 
 
 charterer, and the master remained in the 48 L. J. C. P. 759; L. E. 4 C. P. D. 283. 
 service of the owners, it was held that so
 
 1. MODE OP ENTERING INTO COXTBACT, &C. 255 
 
 [also, and that both he and they are separately bound to the perform- Chap. 4. 
 anee of it. 
 
 When a ship is intended to be thus employed, it is usual, in London 
 and other places to give notice of the intention, by printed papers and 
 cards, mentioning the name and destination of the ship, her burthen, 
 and sometimes her force ; and sometimes expressing also that the ship 
 is to sail with convoy, or with the first convoy for the voyage, or other 
 matters relating thereto. At a trial at Nisi Prius, in the 40 Geo. 3, 
 it was said by the jury, that among merchants this expression was 
 understood to be an assurance or warranty to the merchant, who 
 loaded goods in pursuance of the advertisement, and to become a part 
 of the contract with him, although not afterwards contained in the 
 bill of lading (c). 
 
 This dictum, where convoy is not mentioned in the bill of lading, 
 must be considered as very doubtful. In an action afterwards brought 
 by a person who had shipped goods on board a general ship for 
 Grenada, against the owner for having sailed without convoy, in 
 consequence of which he had lost the benefit of an insurance which 
 he had effected, the ship having been captured on the voyage, it 
 appeared at the trial that the ship had been put up or advertised '^to 
 sail with convoy ;" but that the bill of lading made no mention of 
 convoy — that it was, in fact, intended that the ship should sail with 
 convoy, but that she was blown out of the Downs in a gale of wind, 
 and the master then intended to go into Falmouth to wait for a 
 convoy, but being prevented from doing so by the appearance of a 
 French privateer, by which he Avas chased, he made sail for Grenada, 
 and was afterwards taken. 
 
 At the trial the defendant obtained a verdict. The court was 
 afterwards moved to grant a new trial, and the case was argued at 
 some length. A new trial was granted, in order that the court might 
 receive further information ; and the attention of the counsel was 
 directed to the following points : Whether the concise expression, 
 ^' to sail with convoy,'^ meant anything more than that the ship was 
 intended to sail with convoy, or could be construed as a warranty that 
 the ship should sail with convoy, in the strict sense of the word 
 warranty ? What was the effect of the bill of lading, which made no 
 mention of convoy? What was the effect of the endeavours used by 
 the master to sail with convoy, and of the circumstances by which he 
 had been prevented from doing so ? The cause was not taken down 
 to a second trial [d). 
 
 In a subsequent case, before Lord Chief Justice Gibbs, at Nisi 
 Prius, where the bill of lading expressed that the ship was bound for 
 London, with convoy, that very learned judge held that the bill of 
 lading amounted to an undertaking that the ship should sail with] 
 
 (f) The case here refen-ed to was pro- vations of Gibes, C. J., in Saunderson v. 
 
 bablj Sinquist v. Bitchell, 3 Esp. 64. It Busker, after cited, to be an error, 
 
 is stated in the report that the bills of {d)\_Snell\'.Marrtiatt,\\\K.'BASGeo.^.'] 
 
 lading contained a warranty to sail with See Cranston v. Marshall, 5 Ex. 394; 
 
 convoy, but that appears, from the obser- Feek v. Larsen, L. E. 12 Eq. 378.
 
 256 CONTRACT FOR CONVEYANCE IN A GENERAL SHIP. 
 
 Part IV. [convoy (a) . And in a similar case before Lord Ellenborough, at 
 Nisi Prius, the point was not contested. The defendant^ howevei', 
 succeeded on the ground that his not sailing with the convoy arose 
 from the fault of the shipper (b) .] 
 
 But if a general ship be advertised for a particular voyage, and it 
 be altered, the owner is bound to give specific notice of the alteration 
 to all persons who afterwards ship goods on board the vessel ; and he 
 is otherM'ise answerable for the loss which they sustain, by supposing 
 that the destination of the vessel remains unaltered (c). 
 
 AVhere a ship is put up by its charterer as a general ship, the 
 
 charterer is not bound, unless by express agreement or the usage of 
 
 the port of shipment, to furnish the owner of the ship with copies of 
 
 the bills of lading of the goods put on board {d) . 
 
 By what law ^ |^-jj ^f lading made in England by the master of an English 
 
 CODStl'VlGCl. >> . . 
 
 ship is a contract to be governed and interpreted by English 
 law {e). 
 
 The power of a master of a ship to bind his owners personally is 
 \ but a branch of the general law of agency ; and where the master of 
 
 a ship contracts as such in a foreign port to carry goods for a foreigner, 
 his authority to bind his owners is that conferred by the law of the 
 country to which the ship belongs ; and the flag of the ship is notice 
 to all the world that his implied authority is limited by the law of 
 that flag. 
 
 Where, therefore, the master of a French ship contracted in the 
 West Indies to carry goods of an Englishman from thence to Liver- 
 pool, and on the voyage was obliged to put into a port of refuge, and 
 there properly borrowed money on bottomry bonds for the iise of the 
 ship and crew, and the owner of the goods was obliged to pay money 
 to the holder of the bonds in order to redeem his goods, it was held, 
 that the owner of the goods had no claim against the owners of the 
 ship if they chose to abandon the ship and freight ; inasmuch as by . 
 the law of France it was lawful for them to free themselves from the 
 acts and engagements of the master in all that concerned the ship 
 and voyage by the abandonment of the ship and freight (/) . 
 
 2. Of Bills of Lading — Me?V Form, Signature, and Effect. 
 
 [When goods are sent on board the ship, the master, or person {g) 
 on board acting for him, usually gives a receipt for them, and the 
 master afterwards signs and delivers to the merchant, sometimes two,] 
 
 (a) Saunderson v. Busker, 4 Campb. 54, 41 L. J. Ad. 23 ; L. R. 3 A. & E. 436; the 
 in note. Smi Roman, 41 L. J. Ad. 72 ; L. R. 5 P. C. 
 
 (b) Magalhaem v. Busher, 4 Campb. 54. 801; the Express, 41 L. J. Ad. 79; L. R. 
 
 (c) Per GiBBS. Ch. J., in Feel v. Frice, 3 A. & E. 583. 
 
 4 Campb. 243. (/) Llc)/d v. Chiiberf, 33 L. J. Q. B. 241 ; 
 
 (d) Button V. Poioles, 2 B. & S. 174, 191 ; 35 L. J. Q. B. '74. 
 
 30 L. J. Q. B. 169. (ff) See Hai/n Roman and Co. v. Culli- 
 
 (e) Moore v. Harris, 45 L. J. P. C. 55. ford, 47 L. J. Q. B. &c. 755; L. R. 3 
 In this case the goods were to be carried C. P. D. 410. 
 
 from Loudon to Toronto : see the Fatria
 
 2. BILLS OF LADING — THEIR TOEM, &C. 257 
 
 [and sometimes tliree^ parts of a bill of lading, of which the merchant Chap. 4. 
 
 commonly sends one or two to his agent, factor, or other person to 
 
 whom the goods are to be delivered at the place of destination ; that 
 is, one on board the ship with the goods, another by the post or 
 other conveyance, and one he retains for his own security : the 
 master should also take care to have another part for his own use. 
 The master must make out his bill of lading according to the direc- 
 tion of the shipper of the goods, or the holder of the receipt given on 
 the shipment, for the shipper has a right to name the consignee to be 
 mentioned in the bill of lading, even although it may not be 
 expressed in the receipt that the goods are shipped for his account, 
 this being tacitly understood ; and if the master signs a bill of lading 
 for delivery to another person, and delivers accordingly, he may be 
 answerable to the shipper for the value of the goods (A) .] 
 
 The bill of lading should bear a sixpenny stamp. It cannot be 
 stamped after execution. A person who executes an unstamped bill of 
 lading is liable to a penalty of 50/. (33 & 34 Vict. c. 97, sched. 
 s. 56). 
 
 Owners of ships engaged generally in the transportation of goods 
 for hire are common carriers and this though one of the termini be 
 without the realm (i) . But they are in general exempted from their 
 absolute liability as common carriers by the bill of lading {k). 
 
 [old form of a bill of lading. 
 
 I. W. \ Shipped, by the grace of God, in good order, by A. B. 
 No. 1, a 20. ) merchant, in and upon the good ship called the Joh7i and 
 Jane, whereof C. D. is master, now riding at anchor in 
 the river Thames, and bound for Barcelona, in Spain, 
 twenty bales, containing one hundred pieces of broad 
 cloth, marked and numbered as per margin (Z) ; and are to 
 be delivered in the like good order and condition at 
 Barcelona aforesaid {the danger's of the seas excepted), 
 unto E. F., merchant there, or to his assigns {m), he or 
 they paying for said goods per piece freight, 
 
 with primage and average accustomed (w). In Witness 
 whereof the master or purser of the said ship hath affirmed 
 to three bills of lading of this tenor and date, one of] 
 
 (h) \_Craven v. :Rycler, 6 Taunt. 433, and {k) Notara v. Henderson, 41,L. J. Q. B. 
 
 2 Marsh. 127.] See Schuster v. M'Keller, 158, i^er cur. 
 
 7 E. & B. 704 ; 26 L. J. Q. B. 281. (0 See fost, p. 278, as to description of 
 
 Sathesing v. Laing, 43 L. J. Ch. 233; goods in bill of lading. 
 
 L. R. 17 Eq. 92 ; fost, p. 286. {m) As to the effect of leaving out or his 
 
 (0 Nugent v. Smiili, 45 L. J. C. P. 19 ; assigns, see Henderson v. The Comptoir 
 
 L. R. 1 C. P. D. 19, 423. In this case the ITEscompte de Paris, 42 L. J. P. C. 60; 
 
 defendant advertised to carry any persons' 2 L. J. P. C. 253. 
 
 goods from place to place. ' Letter Alkali (n) As to inserting a stipulation respect- 
 Co. V, Johnson, 4:3 L. J. Ex. 216; L. R ing the payment ot demurrage, see ante, 
 9 Ex. 338. 241.
 
 258 CONTEACT POPt CONVEYANCE IN A GENERAL SHIP. 
 
 Part IV. [wliicli bills being accomplished, tlie otber two to stand 
 
 """^ void. And so God send the good ship to her destined 
 
 port in safety. 
 
 Dated at London, the day of .] 
 
 [The terms of this exception were altered, some years ago {a) , in con- 
 sequence of an alarm taken by the shipowners, at the decision of a 
 cause that will be mentioned in a subsequent chapter {b) ; and of late 
 the exception is usually made in the following words : " The act of 
 God, the King's enemies, fire, and all and every other dangers and 
 accidents of the seas, rivers, and navigation, of whatever nature and 
 kind soever, excepted" But in the case of ships homeward bound 
 from the West India islands, which send their boats to fetch the cargo 
 from the shore, there is introduced a saving out of this exception '^of 
 risk of boats, so far as ships are liable thereto/' And in that case 
 the Avhole clause is as follows : '' The act of God, the King's enemies, 
 fire, and all and every other dangers and accidents of the seas, rivers, 
 and navigation, of tvhatever nature and kind soever, save risk of boats, 
 so far as ships are liable thereto, excepted." But these additional 
 words are probably redundant; the}' do not make the owner liable 
 for a loss in boats, to which he would not be liable in the ship, where 
 boats are customarily used (c). Other clauses may be introduced, 
 either to take away the responsibility of the master and owners in 
 cases for which they would otherwise be responsible, or to give to 
 them or to the shippers an advantage to which they would not other- 
 wise be entitled. Instances of this kind, providing for a payment in 
 the nature of demurrage, have been already noticed [d) .] -A clause 
 may be inserted in the bill of lading that the shipowner shall not be 
 liable for damage to goods unless a claim for the same be made before 
 the goods are removed (e) . 
 
 [In the above-mentioned form of a bill of lading the name of a con- 
 signee is mentioned, but sometimes the shipper or consignor is him- 
 self named as consignee, and the engagement is expressly to deliver 
 to him or his assigns ; and sometimes no person is named as consignee, 
 but the terms of the instrument are, " To be delivered, ^c, unto 
 order, or assigns," which words are generally 
 
 understood to import an engagement on the part of the master to 
 deliver the goods to the person to whom the shipper or consignor] 
 
 («) This is taken from the 5th ed. of this (c) [See Johnson v. Benson, 4 B. Moore, 
 
 •work, which -was published in 1827. The 90, and Chap. 5 of this Part.] 
 
 terms of this exception are now sometimes {d) [See Rarman v. Clark ; Same v. 
 
 much enlarged. Mant, 4 Camp. pp. 159 and 161 ; Leer v. 
 
 {b) \_Smith V. Shepherd, post. Chap. 5 of Yates, 3 Taunt. 387. And see ante, p. 241 j] 
 
 this Part, sect. 1.] It has been held that a Jesson v. Solly, 4 Taunt. 52 ; Brouncker v. 
 
 detention and seizure under tiscal regula- Scoit, 4 Taunt. 1; Evans v. Foster, 1 
 
 tions at a foreign port are not within the B. & Ad. 118. 
 
 meaning of this exception, so as to exonerate (e) Moore y. Harris, 45 L. J. P. C. 55; 
 
 the master and owners. Spence v. Chad- L. R. 1 App. Ca. 318. The effect of such 
 
 %oick, 10 Q. B. 517. a clause was discussed in this case. Petro- 
 
 cochino v. Bott, 43 L. J. C. P. 214.
 
 2. BILLS OF LADING— THEIR FORM, &C. 259 
 
 [shall order the delivery, or to the assignee of such person. This Chap. 4. 
 subject will be further considered in a subsequent chapter (/) .] — - 
 
 Sometimes the bill of lading incorporates by I'eference the terms of 
 the charter-party or some of them {g). 
 
 Goods were shipped under a bill of lading which commenced : 
 
 '' Shipped in the steamship Hibernia with liberty to call at 
 
 any ports, in or out of the route, to receive and discharge coals, &c., 
 and to tranship the goods by any other steamer;" it was held that it 
 was an implied term of the bill of lading that the voyage should be 
 wholly or principally by steam {h) . 
 
 The bill of lading is the written acknowledgment of the master Bill of lading 
 that he has received the goods from the shipper, to be conveyed ^lio^ui not 
 on the terms therein expressed to their destination, and there j.^^^ st.^j.g. 
 delivered to the parties by him designated. The master, therefore, ments, 
 should be careful not to sign bills of lading until the goods are 
 actually delivered to him, nor to permit the insertion of statements 
 in the bill of lading at variance with the fact, or of a nature to mis- 
 lead or give rise to misunderstanding (i) . By so doing he may involve 
 his owners in litigation, and become responsible to them and to other 
 parties. 
 
 In the case o^ Howard v. Tucker (k), goods were shipped in India 
 for London, on account of Wylie. The bill of lading was forwarded 
 to him, and he endorsed it over for value. The goods were stated in 
 the bill of lading to be " shipped on board the Bussorah Merchant, 
 in the river Hooghly, for London, by E,. Charlton, on Wylie's 
 account and risk, unto shipper^s order, or to his assigns, he or they 
 paying freight for the said goods, being paid in Bengal, with primage 
 and average accustomed,^' The freight had not been paid in Bengal. 
 The captain had signed the bill of lading at the desire of Charlton, 
 the shipper, and on the understanding that he meant to pay the 
 freight before the ship sailed, but which he had not done. The court 
 held, that the owners having given a bill of lading, by which freight 
 appeared to have been paid before the ship's departure from India, 
 were estopped, as against the assignee of such bill, from claiming 
 freight when the vessel arrived ; and Lord Tenterden said, " that 
 the captain might be answerable to his principals for having signed 
 
 (/) Chap. 10 of this Part : Of Stoppage {i) Where 1,670 bags, some weighing 
 
 in Transitu. 12 stones, some only 8 stones, were all 
 
 {g) See Forteous v. Watney, 47 L. J. marked alike, and the master signed a hill 
 
 Q. B. 643 ; L. R. 2 Q. B. D. 223, 534, where of lading " for 467 bags, gross, 35 tons 9 
 
 the bill of .lading contained the words cwt. contents unknown and not responsible 
 
 "paying freight and other conditions as for weight," it was held that the master 
 
 per charter-party." Gray v. Carr, 40 was bound to deliver 467 bags of the larger 
 
 L. J. Q. B. 257. See Schmidt v. Tiden, size, as the description of the weight in the 
 
 43 L. J. Q. B. 199, where it was held billof lading could not otherwise be satisfied, 
 
 that the plaintiff was not entitled to Bradley v. Bunipaee in error, 7 H. & C. 
 
 recover freight from the defendants as 521; 32 L. J. E.k. 22_. The court below 
 
 shippers of goods, inasmuch as both parties had been equally divided on the point, 
 
 made a mistake as to the charter-party 7 H. & N. 200. 
 
 referred to in the bills of lading, and were (i) 1 B. & Ad. 712; see Campion v. 
 
 consequently never ad idem. Cohin, 3 Bing. (n. c.) 17. 
 
 {h) Fraser v. Ihe Telegraph, ^'c, Co. 41 
 L. J. Q. B. 249.
 
 260 CONTRACT FOE CONVEYANCE IN A GENEEAL SHIP. 
 
 Part IV. an instrument which contained an incorrect statement ; yet that third 
 persons, who took the bill of lading on the faith of such statement, 
 for a value to which they might otherwise have thought it inadequate, 
 ought not to suffer for it." 
 
 But between the shipper and the shipowner the bill of lading is not 
 conclusive. Thus, in an action against the owners of the ship Thames, 
 on a bill of lading, signed by the master at Sincapore, for eight hun- 
 dred and ninety bags of pepper, the declaration alleged that eight 
 hundred and ninety bags were shipped, and that some of them had 
 been lost. The defence was, that only seven hundred and ninety bags 
 were shipped, and that the captain had been induced to sign the bill 
 of lading for eight hundred and ninety, by the fraud of the plaintiffs' 
 agent at Sincapore. It was contended for the plaintiffs, that the bill 
 of lading was conclusive, and estopped the defendant, who was owner 
 of the ship ; but Chief Justice Tindal said he was of opinion, that, as 
 between the original parties, the bill of lading was merely a receipt, 
 liable to be opened by the evidence of the real facts, and left the 
 question to the jury, whether, in fact, eight hundred and ninety bags, 
 or only seven hundred and ninety were shipped {a) . 
 
 Where a bill of lading, signed by the master in the usual form, but 
 for goods which were never received on board, had been deposited, 
 according to the custom of merchants, with the plaintiffs, by the 
 parties to whom the master had delivered it, as a security for 
 advances from the plaintiffs to them, and had been endorsed by them 
 to the plaintiffs, together with a bill of exchange drawn by them, and 
 afterwards dishonoured, owing to the non-delivery of the goods men- 
 tioned in the bill of lading, it was held, that the plaintiffs could not 
 recover, in an action on the case against the owners of the ship, the 
 amount for which the bill of lading, if true, would have been good 
 security [b) ; and a second bill of lading, for the same goods, will not 
 be binding on the owner (c). As respects the master, however, it is 
 now expressly enacted, — 
 "When bill of '' That every bill of lading in the hands of a consignee or 
 s^i ' ""•■d°"^^'^' ^^^"^o^"^^*^^ for valuable consideration, representing goods to have been 
 of shipment, shipped on board a vessel, shall be conclusive \d) evidence of such 
 shipment as against the master or other person signing the same, not- 
 withstanding that such goods, or some part thereof, may not have 
 been so shipi)ed, unless such holder of the bill of lading shall have 
 had actual notice, at the time of receiving the same, that the goods 
 had not been in fact laden on board ; and provided, that the master 
 or other person so signing may exonerate himself in respect of such 
 misrepresentation, by showing that it Avas caused without any default 
 on his part, and wholly by the fraud (e) of the shipper or of the 
 holder, or some person under whom the holder claims " (/) . 
 
 (a) Bates v. Todd, 1 Moo. & Rob. 106. sive as to material and weights, see 
 Berkely v. WatUns, 7 Ad. & El. 29. Blnnchetv. Powell's, ^c, Co.,post,26\,2lB. 
 
 (b) Grant v. Nonoay, 10 C. B. 615. (e) Valieri v. Boyland, L. R. 1 C. P. 
 M'Lean v. Fleming, L. E. 2 H. L. Sc. 382. 
 
 128. (/) 18 & 19 Vict. c. Ill, s. 3. This 
 
 (c) SuUersty y. Ward, 20 L. T. 278. section does not make the bill of lading 
 
 (d) As to the bill of lading being conclu- conclusive against the owner or owners, but
 
 3. EESPONSIBILITY ON BILLS OF LADING. 261 
 
 The usual exemption ouly exempts the shipowner from the absolute Chap. 4- 
 liability of a common carrier and not from the consequences of the 7 — . 
 want of reasonable skill, diligence, and care {g) . Where the defendant of'exceptiou. 
 had stipulated in a bill of lading that he should not be accountable 
 for leakage and breakage, this was held to protect him from liability 
 for accidental leakage and breakage in the course of the voyage, but 
 not from leakage and breakage caused by his negligence or the 
 negligence of his servants in stowing the goods (h) ; and generally 
 clauses of this kind do not protect the shipowners from liability for 
 damage to goods occasioned by the negligence of their servants (i). 
 But a bill of lading may provide that the shipowner shall not be liable 
 for the negligence of the master and crew [k) . 
 
 Where a vessel was secured while unloading in a dock by tackle 
 which broke, and she canted over, and her cargo was damaged, it was 
 held that this loss was within an exception in a bill of lading of " all 
 and every the dangers and accidents of the seas and navigation "" {I). 
 
 The usual exception does not take away the ordinary liability of 
 the shipowner to contribute in general average [m] . 
 
 The bill of lading remains in force at least so long as complete jjq^ i^ug jj^ 
 delivery of possession of the goods has not been made to some person force. 
 having a right to claim them under it [n) . 
 
 3. To whom the Masie?' and Owners are responsible on Bills of 
 Lading. Cases of Conditional Consignment, the Condition 
 being unperformed, considered. 
 
 There is often some difficulty in deciding to whom the master and 
 owners are responsible on their contract evidenced by the bill of 
 lading, and whether actions for loss and injury, occasioned by their 
 negligence or misconduct, should be brought by the consignor or 
 consignee. No rule of general application can be laid down for the 
 solution of this difficulty (0) ; but it will always be important to con- 
 sider in whom the right of property, and sometimes in Avhom the 
 right of possession, was vested, at the time of the breach of contract, 
 or neglect of duty which is complained of. 
 
 Where goods are sent by a vendor to a vendee, under a binding 
 
 against the master or other person signing goods themselves. Thrift v. Youle, 46 
 
 the same only. Meyer v. Dresser, 16 C. B. L. J. C. P. 402. 
 
 (n.s.) 646; 33 L. J. C. P 289. Brown v. (i) Czech v. The General Steam Nav. 
 
 The Powell, Sfc, Co., Lim., L. R. 10 C. P. Co., 37 L. J. C. P. 3 ; Notara v. Henderson, 
 
 562 ; 44 L. J. C. P. 289, where the con- supra. 
 
 signees were in a foreign country. Jessel v. {k) The Ditero, 38 L. J. Ad. 69. 
 
 Bath, 36 L. J. Ex. 149 ; L. R. 2 Ex. 267. (l) Laurie v. Dourjlas, 1,5 M. & W. 746. 
 
 See Blanchet v. Powell's, S^c., Co., 43 L.J. {m) Schmidt v. Roijal Mail Steamship 
 
 Ex. 50, where hill of lading made in France Co., 45 L. J. Q. B. 646. Croolces v. Allen, 
 
 and action hrought for freight. 49 L. J. Q. B. 201, post. Part VI., Ch. 1. 
 
 {g) Notara v. Henderson, 41 L. J. Q. B. {n) Barber v. Mei/erstein, 39 L. J. C, P. 
 
 158, per cur. 187. 
 
 (A) Phillips V. Clark, 26 L. J. C. P. (0) The Felix, 37 L. J. Ad. 48. The 
 
 168 ; 2 C. B. (n.s.) 156. Ohrlof v. Bris- Figlia Maggiore, 37 L. J. Ad. 52. See, 
 
 call, 35 L. J. P. C. 63. The Nepoter, 38 post, 272 note (/), and see 18 & 19 Vict. 
 
 L. J. Ad. 63. A similar clause was held to c. Ill, s. 1, post, p. 275, enactment as to 
 
 be limited to leakage or breakage of the transfering rights of suit, in certain cases, 
 
 to consignees, &c.
 
 262 
 
 CONTRACT FOK COXVEYAXCE IX A GEXEEAL SHIP. 
 
 Part IV. contract of sale, the delivery of them to a carrier of the vendees' 
 ~~" selection is in general a delivery to the vendee, whose agent the 
 carrier becomes, and the vendee is the person to sue the carrier for 
 the loss of them ; but it is in general otherwise where the property in 
 the goods has not passed to the vendee (a) . DeliA'ery to the master 
 of a ship would have the same effect were it not for the express con- 
 tract in the bill of lading, which is the evidence of the master's having 
 received the goods of the shipper, of his title or the title of the assignee 
 of the bill of lading, or the consignee named in it, and in whose hands 
 it is to claim them from the master, and of the terms on which he, 
 for himself and for the shipowner, has contracted to carry and deliver 
 them. 
 
 Goods may be shipped to the order, and " on account and risk " of 
 the consignee as purchaser, and yet his right to the possession of 
 them be incomplete. It commonly happens that goods are not paid 
 for, before or at the time of their shipment, but by bills of exchange 
 drawn for their amount on the consignee, or on other jiarties. 
 Between the consignor and consignee, the agreement or under- 
 standing may be, that the property in the goods shall not vest in the 
 latter until such bills are accepted. When this is the case, the 
 master will generally be required to sign bills of lading, to deliver 
 the goods to the orders of the shipper, by whom one part, unendorsed, 
 will be forwarded to the consignee, to notify the shipment, and 
 another part, endorsed^ to the agent of the consignor, to be delivered 
 to the consignee when the condition of the consignment has been 
 performed, by the acceptance of the bills of exchange {b) . 
 
 A vessel Avas chartered by one Berkely, for corn purchased in and 
 to he shipped from Russia. The bills of lading were made for deli- 
 very to the shipper's own order ; an unendorsed part was transmitted 
 to Berkely, and an endorsed part to an agent of the shippers in 
 London, who was to hand it over to Berkely, on his giving security by 
 bills for the price. Berkely refused to give the required security, 
 whereupon the agent of the shippers claimed the goods on their 
 arrival, but the master delivered them to Berkely, on his assurance 
 that he was entitled, as purchaser, and that the goods were shipped 
 on his account and to his order. An action was brought by the 
 shippers against the owners of the vessel, founded on the bill of 
 lading, for not delivering pursuant thereto ; and it was admitted on 
 the trial and argument, that even if Berkely had established his riglit, 
 there must have been a verdict against the defendants with nominal 
 damages for the breach of their contract (c). "The complaint,'' said 
 Lord Tenterden, " against the defendants is, that instead of deliver- 
 ing the goods to the plaintiffs' orders, they delivered them at another 
 place and to a person mIio had not the plaintiffs' orders. This was 
 a breach of the contract, for which the plaintiffs might undoubtedly 
 
 (a) Baices v. Peel; 8 T. R. 330. Duffoii (l) Bloxam v. Sanders, 4 B. & C. 941. 
 
 V. Solomonson, 3 B. & P. 584. Coats v. Wilmshurst v. Boickev, 5 Binsr. N. C. 541 ; 
 
 Chaplin, 3 Q. B. 483. Btinloj) v. Lamlei-t, 7 Scott, 561 ; 2 M. & G. 792. Wait v. 
 
 6 CI. & F. 600. Broicn v. Hodgson, 2 Baker, 2 Ex. Ij and Keif v. Cotesworth, 
 
 Campb. 36. Colemanr. Lambert, 5 M. & W. 7 Ex. 505. 
 602. Fragano v. Long, 4 B. & C. 219. (c) Brandt v. Boidby, 2 B. & Ad. 932;
 
 3. RESPONSIBILITY ON BILLS OF LADING. 263 
 
 maiutain an action against tlie shipowners, Bnt they defend them- Chap. 4. 
 selves under Berkely, and say that he had a right to receive the 
 goods ; for the property had vested in him^ and^ therefore, the 
 plaintiffs are not entitled to more than nominal damages. Let us see 
 how that is. The wheat had been pm'chased on his order, which he 
 revoked. By the original terms of the contract it was to be sent to 
 London, and bills were to be drawn upon Harris and Co. for the 
 amount. Berkely directed them not to accept the bills drawn on 
 them, and they were not accepted. He could have no right to the 
 goods unless he allowed Harris and Co. to accept the bills, for that 
 was part of the bargain. It was impossible, therefore, to say 
 that the property vested in Berkely, and the defendants were not 
 justified in delivering the wheat to him.^^ Mr. Justice J. Parke 
 added, " The question in this case is. Whether the property in the 
 goods shipped ever vested in Berkely at all ? That depends entirely 
 on the intention of the consignors. It is said that the plaintiffs, by 
 the very act of shipping the wheat, in pursuance of Berkely's order, 
 irrevocably appropriated the property in it to him. I think that is 
 not the eiSect of their conduct, for, looking to the letter of the 26th 
 of August, it manifestly appears that they intended that the property 
 should not vest in Berkely, unless the bills were accepted. They 
 stated in that letter that they had drawn upon Harris and Sons 
 and Berkely bills amounting to 810/., and they recommended them 
 to his, Berkely's, protection. They also stated that they had for- 
 warded to Harris and Sons an endorsed bill of lading, and they 
 enclosed to Berkely an unendorsed bill of lading. The fact of their 
 transmitting the latter bill of lading to Berkely, and an endorsed one 
 to Harris and Sons, shows clearly that they did not intend that the 
 property in the wheat should vest absolutely in Berkely, but should 
 be subject to a condition that the bills were accepted. As they were 
 not accepted, Berkely had not performed the condition on which the 
 vesting of the property in him was to depend, and therefore it never 
 did vest in him." 
 
 As between consignor to order and consignee the observance of 
 these conditions is essential to the preservation by a shipper and 
 owner of goods of his right to control the disposal of them {d) . The 
 object and nature of the consignment and the character of the con- 
 signee must be attended to ; for, although a shipment has been made, 
 and a bill of lading for delivery to a consignee by name signed by 
 the master at the consignor's request, or a bill of lading for delivery 
 to his order endorsed by him in blank, he may be free to attach con- 
 ditions to the consigment, or revoke it, before the goods, or the bill 
 of lading which represents them, are by his authority delivered to 
 the consignee (e) . 
 
 In the case of Mitchell v. Ede (/), it appeared that Mackenzie, a 
 planter in Jamaica, was in the habit of receiving supplies from the 
 
 {d) Wilmshirst v. Bowker, 7 M. & G. (/) 11 Ad. & El. 888; see Guvney v* 
 
 882; aiQ6.Key\. Cofesioorth, 7 Exch. 595. Sehrend, 3 E. & B. f>22; Schohmans V; 
 
 (e) And see post, Chap. 10 of this Part, Lancashire, Sfc. E. Co., 36 L. J. Ch. 361. 
 s. 5, " Stoppi'.g'o iu Trail jitu."
 
 264 CONTKACT FOE CONVEYANCE IX A GEKERAL SHIP. 
 
 Part IV. defeudant^ a merchant in England, who "was accustomed to send 
 "~~" them out in his vessels and receive consignments in return. In 
 March, one of the defendant's vessels arrived in Jamaica, and 
 Mackenzie wrote to the defendant that he should send 150 hogs- 
 heads of sugar from A. M. estate, besides other produce, which 
 he directed the defendant to insure, and he also advised him that 
 he had drawn on him on account of A. M. estate. The defendant 
 had an account with Mackenzie in respect of this estate. The 
 defendant insured accordingly, and paid the di'aft of Mackenzie. 
 On the 4th of April, Mackenzie shipped the goods on board the 
 defendant's vessel, and the master signed a bill of lading, by which 
 they were made deliverable to the defendant. The sugars in question 
 had been raised by the aid of a capital supplied by the plaintiff. On 
 the 5tli of April, Mackenzie promised to the plaintiff to secure him 
 out of the produce of A. M. estate ; and on the 6th of April he 
 endorsed on the bill of lading, that the sugars Avere to be delivered 
 to the defendant, on condition that he would pay the bill for 
 advances made by the plaintiff, otherwise the sugars were to be 
 delivered to him, and Mackenzie delivered the bill of lading to the 
 plaintiff. On the arrival of the goods in London, the defendant 
 refused to comply with the condition endorsed on the bill of lading. 
 Mackenzie was indebted to the defendant to a large amount, but he 
 held securities for the debt ; he Avas also indebted to the plaintiff to 
 an amount greater than the value of the sugar. 
 
 It was contended, that the shipment of the goods on board the 
 defendant's ship under a bill of lading, in which the defendant was 
 named as the consignee, vested the property in him, that the con- 
 signment so made and advised was not revocable, and that the 
 plaintiff having taken the bill of lading with notice of the circum- 
 stances, held it subject to all claims, legal or equitable, of the defen- 
 dant. The Court of Queen's Bench decided that the signature of 
 the bill of lading, the delivery on board the defendant's ship, his 
 acceptance of the bills, and payment of them and of the insurance, 
 did not vest in him the property of the goods ; that Mackenzie had 
 the right to make the special endorsement on the bill of lading, and 
 that the goods vested in the plaintiff on the defendant's refusal to 
 comply with the conditions which it imposed. 
 
 The distinction between this case and some others {a), which will 
 be presently noticed, appears to be, that the shipment was not made 
 to order, that the consignor had not parted with the bill of lading, 
 and that, although he was indebted to the consignee, there was no 
 agreement between them that the goods should be consigned, or 
 advices that they had been consigned in reduction of the balance due. 
 In the preceding case of Brandt v. Bowlbij, the receipt by Berkely of 
 an unendorsed bill of lading, with an intimation that a duplicate, 
 endorsed, had been forwarded to another person, evinced a clear 
 intention in the mind of the shipper not to part with his property in 
 
 (a) See post, sect. 5, aud see the notes to sect. 8, and "Stoppasre iu Transitu," ;;05i!, 
 Chap. 10 of this Part. ^ > i '
 
 3. EESPONSIBILITY ON BILLS 0¥ LADING. 265 
 
 the goods^ or with his right to dispose of them. In Mitchel v. Ede Chap. 4. 
 
 there was no evidence of an intention that the property in the goods 
 
 should in any event vest in the defendant. Had the bill of lading 
 remained unaltered, he would have received the goods in the same 
 character as he effected the insurance of them, and that would rather 
 appear to have been the character of an agent for the consignor. In 
 the consignor, therefore, the property remained, until, on the defen- 
 dant's refusal to perform the condition annexed to his receipt of it 
 by his principal, it vested in the plaintiff. 
 
 In most cases, the selection by the shipper of one or other of the 
 accustomed modes of making out and dealing with the bill of lading 
 will decide, as between him and the consignee, and between those 
 Avho claim under them, the question of property in the shipment. 
 
 The defendant, a corn-factor, wrote to one Lethbridge, requesting 
 samples of barley and an offer of a cargo ; Lethbridge sent the samples 
 Avith an offer of four hundred qiiarters for cash on handing bill of 
 lading, or by acceptance, &c. ; the defendant accepted the offer, and 
 the barley was shipped on board a ship chartered by Lethbridge, and 
 made deliverable by the bill of lading to Lethbridge or his assigns. 
 Lethbridge sent the charter to the defendant, and afterwards left the 
 invoice and bill of lading unendorsed at the defendant's counting- 
 house, but a dispute arising as to the quality of the barley, the 
 defendant tendered the price of the cargo to Lethbridge, who refused 
 to accept it, took away the bill of lading, and endorsed it to the 
 plaintiff. Here was a clear breach of contract by Lethbridge, and an 
 intention to devote the specific cargo to its fulfilment, unless he should 
 change his purpose, which by not endorsing the bill of lading to the 
 defendant he reserved the power of doing. But this intention was 
 never executed. The barley was delivered to the master by Leth- 
 bridge, to be carried for him, and delivered to him or to his assignee 
 of the bill of lading. He would have satisfied his contract with the 
 defendant by delivering to him another cargo, answering the samples, 
 and accordingly it was held that the property had not passed from 
 Lethbridge to the defendant, and that a portion of the barley having 
 been deliverd to him, he was liable to the plaintiff in an action of 
 trover for its value [b) . 
 
 A cargo of linseed was contracted for by the plaintiff Avith the 
 London partner of a house at Odessa, to be shipped at that port and 
 paid for by bills draAvn by the Odessa hoase. The plaintiff" chartered 
 a ship to proceed to Odessa, take on board the linseed " from the agents 
 
 {b) Wait V. Baker, 2 Ex. 1 ; Merahita enforce that lien against persons to whom 
 
 V. Imperial Ottoman Bk., 47 L. J. Q. B. the shipping documents were afterwards 
 
 418. A man may, without actually vesting sent to be delivered to him on conditions 
 
 the property of goods in another, give him with which he failed to comply, it not ap- 
 
 a lien in equity upon them. Rayner v. pearing that he had given to the holders 
 
 Sarford, 27 L. J. Ch. 108. A man who of the sliij^ping documents distinct notice 
 
 had accepted bills against the cai'goes of of his equitable lien, and of his intention to 
 
 particular ships upon a promise by the insist on it before they accepted the bills 
 
 shipper that they shoiild be consigned to of the shipper. Hoxise v. Draper, 28 L. J. 
 
 him, was held when the cargoes were shipped Ch. 611. It will be noticed that this case 
 
 to have an equitable lien, though not a legal was decided before the Judicature Acts. 
 interest in them ; but the com't declined to
 
 266 CONTEACT FOE CONVEYANCE IN A GENEEAL SHIP. 
 
 Part IV. of tlie freighter, and deliver the same to the order of the freighter on 
 being paid freight/^ and accepted bills drawn upon him by the Odessa 
 house, -which were paid when due. The vessel arrived at Odessa and 
 took on board the linseed, but the Odessa partners being in difficulties 
 procured the master to sign bills of lading making the goods deliver- 
 able "unto order or to assigns/^ and endorsed the bills of lading for 
 value to a third person who transferred them to the defendants. 
 Here, again, there was a plain intention on the part of the Odessa 
 house to provide and ship linseed for the plaintiff, in fulfilment of the 
 contract made with him by their partner ; but a plain intention also 
 to preserve the right of property and possession in themselves, and 
 retain the power of controlling the destination of the shipment by 
 bills of lading making the goods deliverable to their own order, and 
 having exercised that power, however improperly, in favour of a third 
 party, it was held, that the property and right of possession had not 
 vested in the plaintiff (a). 
 
 Cotton was shipped by M. and Co., a house at Charleston, pursuant 
 to the order of B. and Co., a house at Liverpool, on board their ship. 
 The master signed a bill of lading '' to order, or to our assigns, paying 
 for freight for the cotton nothing, being owners' property,^' and INI. 
 and Co., endorsed the bill of lading, " deliver the within to the Bank 
 of Liverpool, or order.'"" M. and Co. informed B. and Co. that they 
 had dravtii bills for the cargo, which tliej^ desired B. and Co. to 
 insure, and sent to B. and Co. an invoice, stating that the goods were 
 shipped for Liverpool, '' by order and on account of B. and Co. there, 
 and to them consigned." Not ha-sang sufficient funds of B. and Co. 
 in their hands to pay for the goods, M. and Co. sold the bills to a 
 bank at Charleston, and delivered to the bank the bill of lading as 
 security for the payment of the bills. The bills were dishonoured, 
 and taken up by M. and Co., Avho (B. and Co, having become bank- 
 rupt before the arrival of the ship) claimed on its arrival to stop the 
 goods in transitu, and they were stowed in the warehouse of the 
 defendants. In an action of detinue, brought by the assignees of B. 
 and Co., it was held that as M. and Co. had reserved to themselves a 
 jus disponendi of the goods, the property in them did not vest abso- 
 lutely in B. and Co. by delivery on board their ship, although the 
 master, by signing a bill of lading deliverable to order or assigns, 
 might have exceeded his authorit3^ 
 
 " The question,'" said Patteson, J., delivering the judgment of 
 the Court of Exchequer Chamber, " really is, whether any and what 
 effect is to be given to the terms in the bill of lading, making the 
 goods deliverable to the order of the vendors ; for if by those terms 
 they reserved to themselves the dominion over the cotton, it would 
 not pass to the assignees. The invoice would pass no property, what- 
 ever its terms might be, the property would only pass upon delivery ; 
 and the only effect to be attributed to the form and expressions of the 
 invoice or bill of lading would be as indicating the terms upon which 
 the goods were delivered. 
 
 {a) Mlei-shaw v. Ilagniac, 6 Ex. 570; Gabarroiv v. Kreeft^ 44 L. J. Ex, 238.
 
 3. EESPONSIBILITY ON BILLS OF LADING. 267 
 
 " The plaintiffs in error rely upon tlie terms of the invoice, and the Chap. 4. 
 expression in the hill of lading that the cotton is free of freight, being — 
 owner's property, as showing that the delivery on board the ship was 
 with the intention to pass the property absolutely ; but the operative 
 terms of the bill of lading as to the delivery of the goods at Liver- 
 pool, and the letter of M. and Co. of the *23rd of October {b), show 
 too clearly for doubt that, notwithstanding the other terms of the bill 
 of lading and the invoice, M. and Co. had no intention, when they 
 delivered the cotton on board, of parting with the dominion over it, 
 or vesting the absolute property in the bankrupts " (c) . 
 
 It thus appears that the mere shipment of goods to order, and on 
 account, of a consignee, does not always vest the property in him, and 
 that an intention on the part of the consignor to pursue the orders 
 of the consignee, unexecuted by final irrevocable appropriation of the 
 goods when shipped or the bill of lading which represents them, to 
 him, will not operate their transfer. Bills of lading for delivery to 
 
 the order of the shipper, or to , or order, or assigns, convey 
 
 notice to the master, that although the goods be shipped on account 
 and risk of a consignee, and compliance with his orders or the fulfil- 
 ment of a contract with him be the motive of the shipment, there 
 may yet be some condition unperformed on which his right to posses- 
 sion depends, or some circumstances which have induced the shipper 
 to retain in his own hands the ultimate appointment of the consign- 
 ment. It is the master's duty, in such cases, to retain, and he cannot 
 safely deliver the goods, until they are claimed of him by the holder 
 of a bill of lading, endorsed by the shipper, to whose order he has 
 engaged to deliver them {d) . 
 
 A case, the peculiar circumstances of which make it an exception 
 to this rule, may assist in its illustration. 
 
 It was an action of trover (e) against a warehouseman who had 
 refused to restore goods delivered to him by the plaintiff for safe keep- 
 ing, on the ground that they belonged to Smidt and Co., by whom they 
 were shipped. These persons being resident at Riga, and indebted to 
 the plaintiff, had accepted from him an order to purchase goods, for 
 which the plaintiff sent his own ship. Smidt and Co. delivered the 
 goods so ordered to the captain, telling him at the same time that they 
 belonged to the plaintiff. After the captain had received them, he 
 was requested by Smidt and Co. to sign a bill of lading, deliverable 
 
 to , or his order, for which he was to receive freight at the 
 
 rates therein specified. The captain objected to sign the bill of lading 
 with a blank for the name of the consignee ; but being assured it was 
 of no consequence, as the goods were to be delivered to his owner. 
 
 (h) In this letter M. & Co. wrote to B. nient of Lord Campbell, in Otirney v. 
 
 & Co., " The bank on whom our drafts on Behrend, 3 E. & B. 6z2 ; Shepherd v. 
 
 you were sold required the delivery of B. L. Harrison, 40 L. J. Q. B. 148. 
 
 which we thought best to comply with, and {d) See post. Chap. 11, s. 5. 
 
 thereby obtained the highest rate of ex- (e) Ogle v. Atkinson, 1 Mars. Rep. 323 ; 
 
 change," &c. and 5 Taunt. 759. And see Turner v. TrtiS' 
 
 (c) Turner v. The Trustees of the Liver- tees of the Liverpool Bocks, 6 Ex. 543 ; 
 
 pool Docks, 6 Ex. 543. And see the judg- Gaharroio v. Kreeft, 44 L. J. Ex. 238.
 
 268 CONTEACT FOE CONVEYANCE IN A GENEEAL SHIP. 
 
 Part IV. was induced to do so. To tlie plaintiff Smidt and Co. wrote, advising 
 
 him that they had shipped the goods for his account and risk, and 
 
 enclosing invoices in which he was charged a commission on their 
 amount. This letter they sent to Lehr, their own agent in this 
 country, informing him that they had remitted to Messrs. Ruckers, 
 bills drawn on the plaintiff, and that they should make the bills of 
 lading to order — that in the event of his not accepting the drafts, 
 Messrs. Ruckers might receive the goods. Lehr, in pursuance of 
 these instructions, called upon the plaintiff before the ship arrived, 
 delivered to him the letter enclosing the invoices, stated that Smidt 
 and Co. had drawn upon him bills for 1,500/., which were in the 
 hands of Messrs. Ruckers, and requested the plaintiff to accept them. 
 The plaintiff refused, and Lehr, in consequence, endorsed a bill of 
 lading which had been transmitted to him to Messrs. Ruckers. On 
 the ship's arrival in England, Messrs. Ruckers claimed the goods as 
 endorsees of the bill of lading, but the captain refused to deliver them, 
 and delivered the goods to the plaintiff, who deposited them with the 
 defendants, as warehouse- keepers, on his account. The question was. 
 In whom the property was vested ? And this involved the further 
 question. Whether the master, under the circumstances, was justified 
 in making delivery to his employer, the shipowner and consignee, 
 contrary to the tenor of the bill of lading? '^It is true," said 
 Chief Justice Gibbs, "that the goods might have been delivered 
 aboard the ship on the terms on which the defendant contends they 
 were delivered, and if they had been, no doubt Ogle (the plaintiff) 
 could not have obtained the goods without accepting the bills — but 
 were they so delivered ? Smidt and Co., in their letter to Ogle, never 
 make mention of any bills to be accepted by Ogle. The case states 
 that the captain received them as the plaintift''s own goods, which 
 means his own goods absolutely, without any qualification. If 
 Smidt and Co. had said * we deliver the goods to you to be the goods 
 of Ogle, if he accepts certain bills,' the defence would avail, but no 
 such thing passes. The goods go on board — bills of lading are 
 tendered to the captain to sign in blank — the captain objects. 
 According to the defendant's argument, the answer should have 
 been, ' I leave the bills in blank, because it is as yet uncertain to 
 whom the bills may be deliverable, for the cargo is to go to Ruckers' 
 unless the plaintiff" accepts certain bills;' but the answer given is, 
 'The blank in the bill is immaterial, for the goods are, at all 
 events, to be delivered to your owner.' If the blank was immaterial, 
 it imported no alteration in the terms of delivery; if it Avas mate- 
 rial, a fraud was practised on the captain which cannot avail the 
 consignors." 
 
 The case of Van Casteel v. Booker and Co. (a) may also be referred 
 to in this place. 
 
 The defendants were assignees of bankrupts, whose correspondents, 
 L. S. and Co., at Rio, had purchased goods, partly on their own 
 
 {a) 2 Ex. 694
 
 3. RESPONSIBILITY ON BILLS OF LADING. 269 
 
 credit, partly on the credit of the bankrupts, for which the bankrupts Chap. 4. 
 had sent a ship of which they were the owners. L, S. and Co. shipped 
 the goods on board the ship, drew bills for the amount of the purchase 
 on their own credit on the bankrupts, had the invoices made out as 
 for shipment " by order and on account and risk of the bankrupts/^ 
 and promised the captain to sign bills of lading, making the goods to 
 their own order or assigns " freight free." One of these bills they 
 endorsed in blank, and sent it to the bankrupts. Shortly after, the 
 agents in England of L. S. and Co. asked the principal member of 
 the bankrupt firm to cause the bill of lading to be placed in their 
 hands, to secure the bills drawn on account of the purchase, to which 
 he assented, and gave a written order to that effect. After the bank- 
 rupts had committed an act of bankruptcy, the bill of lading arrived, 
 and was delivered after the fiat, in pursuance of this arrangement, to 
 a third party, who pledged it for a large advance with the plaintiffs. 
 On the arrival of the cargo, the defendants got possession of it, and 
 the plaintiffs brought this action of trover for it, as endorsees of the 
 bill of lading. The Court of Exchequer, on these facts, held, that 
 although the contract w&s prima facie made on behalf of the vendors, 
 it was a question for the jury, looking at the form of the bill of 
 lading and language of the invoice, whether the goods were not really 
 delivered on board to be carried for and on account and risk of the 
 bankrupts ; and, if they were, that the right of stoppage in transitu, 
 and also the power of rescinding by the bankrupts, so as to defeat 
 the rights of their creditors, were at an end; but that if the jury 
 should think, from the form of the bill of lading, that it was intended 
 to preserve the rights of the unpaid vendors until some further act 
 was done, by transferring the bill of lading, the right to stop the 
 goods in transitu, and also the power of rescinding, would continue 
 until the bill of lading, endorsed, reached the hands of the bankrupts, 
 in which case it was competent for them to give the unpaid vendors a 
 lien on the whole for the part not paid. 
 
 Where the defendant, the shipper of goods which had been pur- 
 chased by him of W. on account of P., wrote to C. and P. enclosing 
 the bill of lading, endorsed, desiring them to follow the instructions 
 of W. respecting the goods, and informing them that he had valued 
 upon them on W.^s account, but not making their acceptance of the 
 drafts a condition of their right to transfer the bill of lading, and P. 
 having got possession from them of the bill of lading, transferred it 
 to persons who advanced money to him upon it, and who transferred 
 it to the plaintiffs for valuable consideration, and C. and S. having 
 refused on P.^s failure to accept the drafts — the defendant claimed to 
 stop the goods in transitu, and obtained possession of them from the 
 master of the ship, it was held in an action of trover that the plaintiffs 
 were entitled to recover (Z>) . 
 
 (b) Gurnet/ v. Behrend, 3 E. & B. 622 ; stone, 37 L. J. Ch. 30; the Argentina, L. R. 
 23 L. J. Q. B. 265; Coventry v. Qlad- 1A.&E.370.
 
 270 CONTEACT FOR C'O^^VETAXCE IN A GENERAL SHIP. 
 
 Part IV. 
 
 4. Cases of Conditional Consignment^ the Condition having been 
 
 perjormed. 
 
 In determining by whom' an action can be maintained against the 
 shipowners for the loss or injury of goods, cases of conditional con- 
 signment (the condition being unperformed) must be carefully distin- 
 guished from those in whicli^ by the terms of dealing between the 
 consignor and coiisiguee, the property in the goods vested in the latter 
 at the time of shipment (defeasible only by the former's right of 
 stopping them in transitu) ; and also from those cases in which the 
 conditions attached to the delivery of the goods have been performed 
 by the consignee. 
 
 In the case of Coxe v. Harden [a), the consignors abroad, upon 
 receipt of orders from their coi'respondents in England_, shipped goods 
 on account and at the risk of the consignee, and took bills of lading 
 from the master to their own order, transmitting one of such bills, 
 unendorsed, with the invoice to the consignee, enclosed in a letter, 
 informing him that they had drawn upon him for the amount, and 
 adding, '^ We close this account in course." Another bill of lading- 
 was sent by them, endorsed to their own agent, hut of this they did 
 not inform the consignee. The master having improjperlxj delivered 
 the goods to the consignee on production of the unendorsed bill o£ 
 lading, it was held, that the property, which was defeasible before 
 delivery in case o£ the consignee's insolvency, had vested in him by 
 the delivery, and that the holder of the endorsed bill of lading could 
 not maintain trover against him. This case is materially distinguished 
 from that of Brandt v. Bowlby {b), by the absence of all intimation to 
 the consignee that a bill of lading, endorsed, had been sent to the agent 
 of the consignor ; an intimation which in that case evinced a clear 
 intention on the part of the consignor that the property should not 
 vest absolutely in the consignee. 
 
 In another case, goods were shipped to order, on account and risk 
 of the consignee. An invoice of them and bills of lading to order or 
 assigns, endorsed in blank, were also transmitted to the plaintiflF, who 
 was the consignee, in a letter of advice, informing him that the con- 
 signor had drawn bills on him at three months for the value of the 
 cargo. Another bill of lading was afterwards sent to the agent of 
 the consignor, under which he obtained the goods from the master, 
 and insisted on immediate payment by the consignee, as a condition 
 of delivery to him. The consignee offered his acceptance at three 
 months, and on that being refused, brought an action of trover against 
 the agent for the goods. It was held, that by the delivery of the 
 goods to the master, and the transmission of the bill of lading and 
 invoice to the plaintiff, the property had passed to him, and that he 
 was entitled to recover {c). 
 
 (a) 4 East, 211. (c) Wallie v. Monfgomerie, 3 East, 
 
 (6) Ante, p. 262. 585.
 
 6. BILLS OF LAPING SENT AS SECrRTTY, &C. 271 
 
 Chap. 4. 
 
 5. Of the Effect of Bills of Lading transmitted as Security for 
 Advances, or to indemnify against Acceptances. 
 
 When bills of lading to shipper's order, or to , or order, 
 
 endorsed by the shippers, or bills of lading by which goods are made 
 deliverable to a consignee by name, are transmitted to him as security 
 for antecedent advances, or to indemnify him against liabilities in 
 respect of the particular consignment which they represent, they are 
 evidence of such a destination and appropriation to him of the specific 
 goods as will vest in him a property, absolute or special in them, at 
 the time of their delivery on board, and so render the master respon- 
 sible to him for their loss or injury. Thus, where bills of lading to 
 shipper^s order, endorsed in blank, were forwarded to the consignees 
 to secure advances agreed to be be made by them to the consignors, 
 and the latter becoming bankrupts, their assignees claimed and 
 obtained the goods from the captain, it was held that he was liable in 
 trover to the consignees {d) . So where goods were shipped, and bills 
 of lading signed and transmitted to a factor, making them deliverable 
 to him; upon proof by correspondence of the intention of the prin- 
 cipal to vest the property in the factor, as security for antecedent 
 advances, it was held, that the latter had acquired a special property 
 in the goods the instant they were delivered on board, and that he 
 might sue the master of the ship for their non-delivery (e). And 
 where a manufacturer at Newcastle consigned goods to his factors in 
 London, who had remonstrated with him on the state of his account, 
 specifically to meet a bill drawn upon them, transmitting to them a 
 receipt signed by the mate of the vessel, acknowledging the goods to 
 have been received on board to be delivered to them, it was held that 
 the appropriation was complete, and that the shipowners were liable 
 in trover to the consignees (/). 
 
 Where a consignee at Liverpool on receipt of a boat receipt, or bill 
 of lading, by which goods actually laden at Longford were made 
 deliverable to certain persons at Dublin ''in care foi', and to be 
 shipped to," him, accepted on the faith of the consignment a bill of 
 exchange, it was held, that the boat receipt was evidence of an inten- 
 tion on the part of the consignor at the time of the lading to vest in 
 the consignee the property in the specific chattels laden, and. that he 
 might maintain an action of trover for them against a person to whom 
 they had been delivered, under a subsequent order of the consignor [g) . 
 In respect of the goods thus actually laden at the time the boat receipt 
 was signed the case was distinguished from those in which, there being 
 
 (d) Haille v. Smith, 1 Bos. & Pul. 513. and in l^ertue v. Jewell, 1 Campb. 31 
 
 (e) Anderson v. Clarlc, 2 Bing. 20. And and Van Casteel, v. Booker, 2 Ex. 691. 
 see the observations of Paeke, B., on that (/) Evans v. Nicholl, 4 Scott, N. C. 43. 
 case in Bri/ans v. Nix, 4 M. & W. 775. See {g) Brijuns v. Nix, 4 M. & W. 775 ; see 
 also the remarks of Lord Ellenboeottgh also Gosling v. Birnie, 7 Bing. 339, and 
 in Patten v. Tkomjyson, 5 M. & S. 356 ; Thompson v. Small, 1 C. B. 328.
 
 272 OONTEACT FOE CONVEYANCE IN A GENEEAL SHIP. 
 
 Part IV. 1^0 clociimentaiy or other evidence to prove an intention on the part 
 
 of the consignor to vest the property in the consignee at the time of 
 
 delivery to the carrier («), it had been held not to have passed to him. 
 Goods which were proved not to have been actually laden^ or speci- 
 fically appropriated to the consignee when the boat receipt was signed, 
 were held, in the same case, not to have vested in him, but in the 
 holder of another boat receipt, regularly signed by the boat master 
 after the goods were on board. 
 
 Where the bill of lading, indorsed in blank, was sent to the con- 
 signee, accompanied by a bill of exchange drawn against the cargo, 
 for acceptance by him, — Held, that it was the duty of the consignee 
 either to approbate or reprobate the transaction in toto ; and that he 
 could not accept the bill of lading and the cargo unless he also 
 accepted the bill of exchange for its value [b). 
 
 6. Of Actions by Consignees, being only agents of the Owner's of 
 
 Goods. 
 
 If the person to whom the delivery is ordered is only an agent of 
 the shipper, and has no property in the goods, it has been thought 
 that he cannot maintain an action in his own name against the master 
 for not delivering them — not i« assumpsit, for the contract in the 
 bill of lading was not made with him, but with a third person, the 
 consignor of the goods — not in trover, because no property having 
 passed to him, he can have no right to complain of their non-delivery 
 or conversion as an injury to himself [c) . Yet in one case, where the 
 consignor of goods, upon the insolvency of the consignee, endorsed 
 the bill of lading to the plaintiff without consideration to enable him 
 to stop the goods in transitu, it was held that the plaintiflF had a 
 sufficient property to maintain trover against the wharfingers {d) in 
 whose custody the goods were. But, whatever may be the contract 
 between the consignor and the consignee, the agreement for the car- 
 riage is between the carrier and the consignor {e). And if a special 
 contract be made between the consignor and the carrier, the consignor 
 may sue upon it without showing his ownership in the goods (/) . 
 
 (a) Kinloch v. Craig, 14 East, 582. (/) Dunlop v. Lamiert, 6 CI. & Fin. 
 
 Kichols V. Clint, 3 Price, 5-17. Bruce v. 600. Since the Judicature Acts the ques- 
 
 Wait, 3 M. & W. 15. tioii whether the consignor or consignee 
 
 (J) Shepherd v. Marrison, 40 L. J. Q. B. should sue is not of so much practical im- 
 
 148. portance as it was before those Acts, as now 
 
 (c) Waring v. Cox, 1 Campb. 369; Coxe v. where there is a doubt who should sue both 
 
 Sarden, 4 East. 211. may be joined as plaintiffs — a misjoinder 
 
 {d) Morrison v. Gray, 2 Bing. R. 260. of plaintiffs is not fatal to the action — and 
 
 But see the note to the case of Waring v. a non-joinder of a plaintiff, or bringing 
 
 Cox, 1 Camp. 369. And see this subject the action in the name of a wrong person, 
 
 very ably discussed in Stobx on Agency, pp. may in general be cured by amendment. 
 
 349 — 356. (Judicature Act, 1875, order 16 ; Arch, by 
 
 (e) Moore v. Wilson, 1 Term Rep. 659 ; Prentice, p. 197.) 
 Davis and Jordan v. James, 5 Bur. Rep. 
 680.
 
 6. WHERE CONSIGNEES ONLY AGENTS. 273 
 
 In Sargent v. Morris (g) the declaration stated that the defendant Chap. 4. 
 was the owner of a vessel lying in the Guadalquiver, hound to London, 
 and that the plaintiff shipped goods on board to be safely conveyed by 
 the defendant, and that he conducted himself so negligently in relation 
 to them, that they were damaged — plea, 7ion assumjisii. It appeared 
 that the goods were shipped by Bayo and Son, of Seville, and that 
 they were the parties interested in the goods. By the bill of lading, 
 the captain acknowledged to have received on board the said vessel of 
 Don Pedro Bayo and Son the goods therein mentioned, and it then 
 proceeded in the following words: — '^ I undertake to deliver the same 
 to you, and in your name, according to custom and usage, to Mr. 
 Sargent, or his assigns, paying freight." The plaintiff, on receiving 
 advice of the shipment, effected an insurance on account of Bayo, 
 and advanced the premiums. It was objected that the action ought 
 to have been brought by Bayo and Son, and not by the present 
 plaintiff. Lord Texterden said, " This is an action on a special 
 contract, founded on a bill of lading, on the face of which it does 
 not distinctly appear whether the contract made by Bayo and Son 
 Avas made on their oivn behalf, or as the agents of Sargent, who is 
 named in the bill of lading as the person to whom the delivery is to 
 be made. The fact is, however, afterwards ascertained by other 
 circumstances, and it appears that the shipment was made on account 
 of Bayo and Son at their risk and for their benefit, and not on the 
 risk or for the benefit of the present plaintiff. It is true, if the goods 
 had been delivered to him, that he wouhl have had a lien to the extent 
 of any advances he had made for freight or insurance, on account of 
 his principal ; and if there had been any deviation so as to discharge 
 the underwriters, and the goods had never arrived, he wonld have 
 been entitled to recover against Bayo for such advances. A transfer 
 of the property is, however, very different from a transfer of the con- 
 tract. It appears to me that this action, at the suit of the present 
 plaintiff, is not maintainable " [h). Bayley, J., added, " The declara- 
 tion describes the plaintiff' as the original shipper, and the original 
 contract as having been made with him. Now, I take the rule to be 
 this : if an agent acts for me, and on my behalf, l)ut in his own name, 
 then, inasmuch as he is the person with whom the contract is made, 
 it is no answer to an action in his own name to say that he is merely 
 an agent, unless you can also show that he is prohibited from carry- 
 ing on that action by the person on whose behalf the contract was 
 made. In such cases you may bring your action either in the name 
 of the party by whom the contract was made, or of the party for 
 whom the contract was made. In this case the contract appears by 
 the terms of the bill of lading to have been made with the Spanish 
 house. Then for whom was it made ? Why, upon the evidence in 
 the cause, en account of the Spanish house,''' 
 
 {g) 3 B. & Aid. 273. Evansv.MaHleit, 297; Thompson v. Domini/, 14= M. & W. 
 1 Lord Raym. 271. 403 ; Franklin v. Neate, 13 M. & W. 4Ro ; 
 
 (A) See Sanders v. Vanzeller, 4 Q. B. Howard v. Shepherd, 9 C. H. 290. 
 
 T
 
 274 CONTRACT FOR CONVEYANCE IN A GENERAL SHIP. 
 
 Part IV. This judgment of Bayley, J., is in conformity with that of Lord 
 ELLEXBORoron {a), in an action against the owner of a ship, on a hill 
 of lading, which stated the goods to have heen shipped by the plain- 
 tiffs, bnt who in fact were only the agents of the owners resident 
 abroad. " I am of opinion/^ said his lordship, " that this action well 
 lies. There is a privity of contract established between these parties 
 by means of the bill of lading. It states that the goods were shipped 
 bv the plaintiffs, and that the freight for them was paid by the 
 piaiiitiffs in London. To the plaintiffs, therefore, from whom the 
 consideration moves, and to whom the promise is made, the defen- 
 dant is lial)le for the non-delivery of the goods ; after such a bill of 
 lading has been signed by his agent, he cannot say to the shippers 
 they have no interest in the goods, and are not damnified by his 
 breach of contract. The plaintiffs are entitled to recover the value of 
 the goods, and they will hold the sum recovered as trustees for the 
 real owners " (b). 
 
 The result of these cases appears to be, that actions e.v contractu 
 against shipoAvners for the non-delivery, loss, or injury of goods 
 entrusted to them, except in eases within the 18 & 19 Yict. c. Ill, s. 1, 
 presently noticed, must be brought by the party with whom the 
 contract to carry is expressly or impliedly made. It is made expressly 
 with the shipper; impliedly with the person for whom he acts as agent — 
 that is, j'jWwfl/ffcie, the consignee. To enable a person to maintain 
 an action of trover for goods, he must have a right of property, 
 general or special, in them, and a right of immediate possession. The 
 consignee will be deemed to have such a property unless the contrary 
 appears (c). 
 
 In the case of an express contract, by bill of lading, the action may 
 be brought by the shipper with whom the master contracted, or by 
 the OAvner of the goods, whose agent the shipper was, or in some 
 cases by the person to whom, by the terms of the bill of lading, the 
 master undertook to deliver them (d). 
 
 7. Assignment of Bill of Ladinq — Effect of same. 
 
 The assignment of the bill of lading passes the whole and com- 
 plete ownership of the goods, so that any person taking a subse- 
 quent bill of lading, be it the second or be it the third part, must 
 
 («) And see Story on Agency, p. 345. altbou<jli B. was bnt an agent, for the 
 
 \l) Joseph V. Knox, 3 Campb. 320. In legal property by the bill of lading vcstetl 
 
 Griffith V. Ingledeu', 6 Serg. & E. 429, in B. in trnst for A.— Note to Story on 
 
 goods were shipped at Livepool by A. on Agency, p. 334. 
 
 his own account, but by the bill of lading (c) Slo.ram v. Sanders, 4 B. & C. 941 ; 
 
 they were made deliverable to B. or his Coleman v. Lambert, 5 M. & W. 502. 
 assignees at Philadelphia. The freight on (d) Ante, p. 272. Haille v. Smith, 1 
 
 the goods was paid at Liverpool by A. It B. & P. 563. Wihnshurst v. Bowker, 7 
 
 was held that B. could maintain an action M. & Gr. 882. Valpi/ v. Gibson, 4 C. B. 
 
 against the ow^ler of the ship for loss 837. Wait v. Baler, 2 Ex. 1. Sec Hoioard 
 
 by the negligent carriage of the goods, v. Shepherd, 9 C. B, 297.
 
 7. ASSIGXMEXT OF BILL OF LADINO. 
 
 U-J 
 
 he content to submit to the loss which would result from that state of Chap. 4. 
 facts {e) . — ^— 
 
 It seems that proof of the indorsement of the bill of lading is 
 evidence that the property in the goods mentioned in it passed (/) . 
 
 In Roger v. tl/e Coy^iptoir D' Escompte de Paris {[/), a case in the 
 Privy Council, their Lordships say, " Doubtless the holder of an en- 
 dorsed bill of lading may, in the course of commercial dealing, transfer 
 a right greater than he himself has. The exception is founded on the 
 negotiable quality of the document. It is confined to the case where 
 the person who transfers the right is himself in actual and authorised 
 possession of the document, and the transferee gives value on the faith 
 of it without having notice of any circumstance which would render 
 the transaction neither fair nor honest.''^ 
 
 Where an endorsee, from the consignor, of a bill of lading had 
 been paid off, and had handed back the bill to the consignor, it was 
 held^ he was remitted to his original rights, and might sue for a 
 non-delivery of the goods, whilst the endorsee was holder of the 
 bill [h). 
 
 As the law lately stood, the endorsement and delivery of a bill of 
 lading transferred in many cases the right of property in the goods 
 represented by it, but not the contract contained in the bill of lading 
 of the master and his owner in relation to them. 
 
 By 18 & 19 Vict. c. Ill, s. 1, it has been enacted "that every Enactment as 
 
 consignee of goods ii) named in a bill of lading and every endorsee of ^?VT"^'^"'"? 
 o ^ o \ / o »-' rights 01 suit. 
 
 a bill of lading, to whom the property in the goods therein mentioned ° 
 shall pass upon or by reason of such consignment or endorse- 
 ment, shall have transferred to and vested in him all rights of suit 
 and be subject to the same liabilities in respect of such goods, as 
 if the contract contained in the bill of lading had been made witli 
 himself." 
 
 If the property is in the consignor, he may transfer with it, by in- 
 dorsement and delivery of the bill of lading, his contract also with 
 the shipowner {k). If the property be not transfei'red, neither is the 
 contract; and the transfer of the property, as we have seen, is a 
 
 (e) Barber v. Mei/erstein, 39 L. J. C. P. rity, a subsequent bond fide transferee for 
 
 187. Gurneii v. Behrend, 3 E. & B. 623. value cannot make title under it as against 
 
 Olynn v. Bast and W. I. Dock Co. 49 L. J. the shipper of the goods." See the Mai-ie 
 
 Q. B. 303; L. R. 5 Q. B. D. 129. Joseph, 35 L. J. P. C. 66; the Argentina, 
 
 (/) JDracachi v. The Anglo- Egyptian L. R. 1 A. & E. 370. As to the effect of the 
 
 Navigation Co., 37 L. J. C. P. 71. Factors Acts, see post. Chap. 10 of this 
 
 (g) lj.'R.2'P.C.2bi; the: Einilien Marie, Part. 
 
 44L. .I.Ad.9. In this case the doctrine of Qi) Short v. Simpson, 35 L. J. C. P. 
 
 constructive notice was reviewed. In Gurney 147; L. R. 1 C. P. 248. 
 
 v.Befirend,5 El. & B. 632; 23 L. J Q. B. (i) Leiois v. McKee, L. R. 2 Ex. 37; 
 
 265, Lord Campbell said, " Although the 4 Ex. 58. 
 
 shipper may have endorsed in blank a bill of (k) Wait v. Baler, 2 Ex. 1, ante, p. 265, 
 
 lading deliverable to his assigns, his i-ight and the cases there cited. See also »S'A««f? v. 
 
 is not aflected by an appropriation of it Sanderson,2S'L.Z.'E-s..27S; Foster \. Colby, 
 
 without his authority, and if it be stolen 3 H. & X. 705 ; 28 L. J. Ex. 88, 
 from him or transferred without his autho- 
 
 T %
 
 276 
 
 CONTRACT FOR COXVETANCE TX A GENERAL SHIP. 
 
 Part IV. question of intention {a) to be ascertained, in the absence of express 
 contract or declaration^, by a careful appreciation of the relative 
 positions in Avhich as correspondents, agents or principals, the parties 
 stood in the transaction, — of its inception, substance, and circum- 
 stances, explained, as they in most cases will be to a great extent, by 
 the modiJ in M'hich the bill of lading has been dealt with by the 
 person at Avhose orders b\ its terms it and t/ie goods it represents 
 have been first placed. In an action by a shipowner for the freight 
 of goods payable as per bill of lading, it appeared that the defendant 
 had shipped the goods on board the plaintiil's ship, and obtained a 
 bill of lading for them from the master, in Avhich they were stated to 
 have been shipped by the defendant as agent, and were to be delivered 
 abroad ''unto order or assigns, he or they paying freight for the 
 goods/' The shipment had in fact been made by the defendant on 
 account of a principal who had agreed with the plaintiff to indorse 
 the bill of lading for the goods to him as security for advances which 
 he had made upon them. The bill of lading was endorsed by the 
 defendant to his principal and to the plaintiff by the principal, but he 
 did not pay the freight. It was objected to the maintenance of the 
 action that, vnider the provisions above referred to, the property in 
 the goods had vested in the plaintiff himself by the endorsement and 
 delivery to him of the bill of lading, and that he could not sue the 
 defendant for the freight. But this contention was thought to be 
 inconsisteut with the substance of the transaction, and unsupported 
 (the property in the goods not having been intended to pass by the 
 endorsement) by the words of the Act, and the defendant was held 
 liable on his contract {b) . An endorsement and transmission of the 
 bill of lading by the shipper and vendor of goods to the vendee, vests 
 the property in the latter, and renders him liable for the price of 
 the goods, and on the shipper^s contract with the shipowner (c). The 
 indorsee liable under the Act, must be holder as well as indorsee ; if 
 before the ship's arrival he has indorsed the bill over, he is not liable 
 upon the contract evidenced by it {d) . 
 
 (a) Ante, p. 2fil, section 3 of this chapter. goods if veudee refuses to perform condi- 
 
 (6) For V. Xoif, 6 H. & N. 630. 30 tions of sale, Ogo v. Shuter, 45 L. J. C. P. 
 
 L. J. Ex. 257; the Freedom, L. R. 3 P. C. M; L. R. 1 C. P. D. 47, C. A. 
 
 594. (d) Si)w.rihwaife v. Wilkins, 11 C. B. 
 
 (c) Broione v. Hare, 4 H. & N. 822. (n.s.) 842; 31 L. J. C. P. 214. Lewis v. 
 
 But see as to the vendor's hold on the McKee, L. R. 2 Ex. 37; 4 Ex. 58.
 
 8. REMARKS ON CASES CITED. 277 
 
 Chap. 4. 
 
 8. Remarks on Cases cited. 
 
 In considering to whom he will be safe in making and in refusing 
 delivery, it may be useful to remind the master that he can rarely 
 incur any responsibility by adhering strictly to his engagement with 
 the shipper. The case of Ogle v. Atkinson, was a case of fraud ; in 
 those of Brandt v. Bowlby and Harden v. Cox, whatever might have 
 been the rights of the consignees, the master and his owners had 
 been safe, had he not departed from his contract in the bill of lading 
 to deliver only to the order of the shipper. In the cases of Haille v. 
 Smith and Anderson v. Clark, the right of tlie consignees to the goods 
 resulted from the special circumstances under whicli they were con- 
 signed ; but their right of action against the master was founded on 
 the neglect of his engagement to deliver to the orders of the shipper. 
 The master should remember, that the cases in Avhich the consignor 
 is entitled to alter the destination of a consignment are not of 
 frequent occurrence. When once he has transmitted a bill of lading 
 by which the goods are made deliverable to a consignee named in the 
 body of it, and not being his own agent — or in blank, or to his own 
 order endorsed by him — he may, if the goods were shipped on credit, 
 and the consignee has become insolvent or failed, assert his right of 
 stopping them in their transit ; but even that right will avail him 
 nothing against the title of an endorsee for value (e) . The insolvency 
 of the consignee may generally be easily ascertained ; but whether 
 
 (e) See post, Chap. 10 of tins Part. signor lias bond fide assigned the bill of 
 Jones V. Jones, 8 M. & W. 431. " The law lading."— Story, note to Amer. ed. p. 388. 
 in America recognizes the same principles " Where a consignment is made to a 
 as the English law on the subject of the factor, for the account and risk of the con- 
 transfer of property by endorsement of the signor, and the bill of lading makes the 
 bill of lading. A' consignor cannot stop goods deliverable to the consignee or his 
 goods in transitu, when they arc shipped to assigns, then the bill of lading must be 
 pay a precedent debt. Neither can he stop endorsed by the consignee, to pass the pro- 
 them when the consignee is his own agent, perty to a purchaser claiming in vu-tue of 
 if the goods are a shipment for a cestuique a transfer by such bill only ; and an en- 
 ^nwi who has paid the consideration; and dorsement by the consignor would not 
 when once the bill of lading is signed by the operate as a legal transfer of the bdl of 
 master after the goods are on board, under lading, so as to defeat the rights of third 
 such circumstances, the consignor and master persons. As against the factor himself, 
 cannot change the right of property by any or any other person claiming the goods by 
 change of the papers, so as to divest the a bond fide transfer of the bill of ladnig, the 
 interest already vested in the consignee. consignor as owner may assign the property 
 But where a shipment is made to a creditor by any legal instrument of assignment wliat- 
 on account and risk of the consignor, and soever ; but then the party takes by sucli 
 there is no contract respectiug it between assignment, for an endorsement can only 
 the consignor and consignee, there the right be made of the bill of lading by the party 
 of stoppage and transfer of the property to whom or to whose order it is ongiiially 
 continues, so that the creditor may be de- made assignable, so as by virtue thereof to 
 feated by a trausfer or countermand before pass the property." — Ibid. ^\d\.—Mr. Jus- 
 the bill of lading reaches him. And a factor tice Shee. See further as to the rights 
 who is a creditor also has no lien on goods acquired by the bond fide endorsement ot a 
 consigned to him by his principal for ac- bill of lading, post. Chap. 10 of this Part ; 
 count and risk of the shipper, if before and see the Factors Acts there noticed, 
 they get into his actual possession, the con-
 
 278 CONTKACT rOR COXVEYAXCE IN A GENEEAL SHIP. 
 
 Part IV. he has paid for the goods^ or whether the holder of a bill of lading 
 
 be an endorsee for value or not, the master can seldom have the 
 
 means of discovering. In the case of conflicting claims, it may be 
 prudent to require indemnity, but if he makes delivery to the 
 person who first claims the goods under a bill of lading regularly 
 assigned to him, the consignor will seldom have much colour to 
 complain that orders drawn up by himself have been too strictly 
 observed {a). 
 
 ■ 9. Description of Goods in Bills of Ladiny. 
 
 [If there is any dispute about the quantity or condition of the 
 goods, or if the contents of casks or bales are unknown, the words of 
 the bill of lading should be varied accordingly. 
 
 By the French ordinance, it is required that bills of lading should 
 contain the quality, quantity, and marks of the merchandise ; the 
 name of the merchant Avho loads them, and of the person to whom 
 they arc to be delivered ; the place of departure and destination ; 
 the names of the master and of the ship ; and the price of the 
 freight [b). 
 
 It is obvious that the quality, and frequently also the quantity of 
 tiie goofls must be unknoAvn to the master ; and the commentator [c) 
 on the ordinance informs us, that by the quality the exterior and 
 apparent quality only is meant ; and further, that it is usual for the 
 master to insert words denoting that the quality and quantity arc 
 only according to the representation of the merchant ; of which 
 practice he approves, and mentions two disputes decided in favour of 
 the master in consequence of this precaution. 
 
 Some of the more ancient writers on maritime law mention the 
 case of goods put on board a ship without the knowledge or consent 
 of the master or owners. It is evident, that in such a case no 
 contract for conveyance is made, but nevertheless the master, 
 upon delivery of them, will be entitled to the usual freight for the 
 voyage.] 
 
 Where on a closed package being shipped for carriage, a bill of 
 lading, containing an innocent misdescription of its contents is 
 presented to the master of the ship, and he, without asking questions 
 or examination, stamps thereon " weight, value, and contents 
 unknown,-'^ there is a contract to carry the package, whatever its 
 contents may be. What is the measure of damages for loss of the 
 contents seems doubtful [d) . 
 
 (a) See the judgment of Maulk, J., in (d) Leheau. v. The General Steam Xavi- 
 
 Howard v. Shepherd, 9 C. B. 297. f7"<'0« Co.A^ L. J. C. P. 1 ; L. R. 8. C. P. 
 
 {h) [Liv. 3, tit. 2 : Des Counoisscim'U?, fS8. As to tlie frciglTt payable on such a 
 
 art. 2. See also the Code de Coiuniciec, package, see Tuliy v. Terrt/, 42 L, .1. C. P. 
 
 art. 281.] 210; Jes-sel v. Bath, L. R. 2 Ex. 267. 
 
 (c) Valin, ubi supra. See also, upon this 
 subject, Boulay Paty, vol. ii, pp. 300, 313.
 
 10. OONSIGNOES' OE ENEMIES' PEOPERTY. 279 
 
 Chap. 4 
 
 10. Admiralty Cases. Consignors^ or Enemies^ property. 
 
 Goods going during war to be deliA^ered in an enemy^s country 
 under a contract to become the property of the enemy on arrival, are 
 considered by Prize Courts as enemies' property, and questions 
 I'cspecting the proprietary interest in cargoes, of the same nature 
 as those mentioned in this chapter to have been decided between 
 consignors and consignees, have arisen between captors and claimants 
 in the Courts of Admiralty o( England and the United States, and 
 been determined upon the same principles. The general rule is, that 
 the property of goods going for the account of the shipper and sub- 
 ject to his order and control remains in him during the transit; and 
 this has been considered to be the case, although the goods were sent 
 in pursuance of the orders of the consignee, or stated to be on his 
 account in the invoice, whenever conditions are annexed to their 
 delivery, or a discretion, respecting it is entrusted to the agent of the 
 shipper (e). 
 
 '^ Where goods,'' said Lord Stowell (/), ^^are shipped without 
 orders, the consignor has an unlimited right to vary the consignment 
 at pleasure. The seller, if he may be so described, retains an absolute 
 power over them, for there is no purchase. But when orders have 
 been received and executed, and delivery has been made to the 
 master of the ship, and bills of lading {g) deliverable to the con- 
 signee signed and transmitted to him, the seller is functus officio, 
 except in the peculiar case in which he is again reinstated by the 
 privileges of the vendeur primitif. That Avill make it a matter of 
 fundamental importance that the letters containing the original 
 order should be produced. The mercantile law I take to be clear 
 and distinct, that the seller has not a right to vary the consignment 
 except in the case [insolvency] above stated. The mischief and in- 
 convenience that would ensue on a contrary supposition are extreme. 
 The goods might be put on board, and might be at the risk of the 
 consignee for two or three months; and if the consignor could come 
 and resume them at pleasure, it would place the consignee in a 
 situation of great disadvantage, that he should be exposed to the 
 risk during such a length of time, for an object which might be 
 eventually defeated at any moment by the capricious or interested 
 change of intention in the breast of the consignor." 
 
 The transfer, by subjects of belligerent states, of property in ships 
 
 (e) Sec the c iscs from the Aiiiericiiu (ff) The words within brackets are not in 
 
 Courts, in Story on Prize Coin-ts, by Pratt; Lord Stowell's judgment, but it is evident 
 
 the Abo,l E. & A. 347; and the Vrouio from the facts of the case, and from a 
 
 Margaretta, 1 Rob. 336. Tlie iSaUy, 3 Rob. reference to ch. 11, sect. 2, of this Treatise, 
 
 ?00 (note); tlie Aurora, 4 Rob. 219. that they are implied. 
 
 (J) The Consfaidla, G Rob. 321.
 
 280 CONTRACT FOE CONVEYANCE IN A GENEEAL SHIP. 
 
 Part IV. or goods in the course of their transit, to the effect of changing their 
 national character, is not recognized by Courts of Admiralty _, if it 
 take place during actual hostilities, or imminent and impending 
 danger of them («) . 
 
 [Having thus considered the several particulars belonging dis- 
 tinctly to the two different species of contract for the conveyance of 
 merchandise by sea, I proceed, in the following chapters of this 
 fourth part, to treat of those general circumstances M'hicli may belong 
 to both.] 
 
 (a) The Danckebaar, 1 Eob. 107; the And see, upou the subjects discussed iu this 
 
 Herstelder, 1 Rob. ll-i; the Trouw Mar- chapter, Blackburn "On the Contract of 
 
 garetta, 1 Rob. 336; the San Frederick; Sale," pp. 135— 146. 
 5 Rob. 128; the Fidentia, 1 E. & A. 314.
 
 DUTIES OP MASTER AND OWNERS. 281 
 
 Chap. 5. 
 
 CHAPTER V. 
 
 OF THE GENEKAL DUTIES OV THE MASTER AND OWNERS; AND 
 
 HEREIN. 
 
 Sect. 1. Of ike Fre])aratio)i for the Voijar/e, p. 281. 
 
 2. Of the Commencement of the Voyage, p. 297. 
 
 3. Of the Course of the Vorjacje, p. 306. 
 
 i. The Master's Dtiti/ as respects the Cargo in the Course of the Voyage, p. 3i0. 
 
 5. Of the Completion of the Voyage, p. 317. 
 
 1 , Of the Preparation for the Voyage. 
 
 [In whatever way the contract for the conveyance of merchandise 
 be made^ the master and owners are thereby bound to the perform- 
 ance of various duties of a general nature. I propose to treat of 
 these duties in the present chapter, and shall consider them as they 
 regard, first, the Preparation for the Voyage j secondly, the C^om- 
 mencement ; tliirdly, the Course ; and lastly, the Completion of the 
 Voyage. _ 
 
 And first, as to the Preparation for the \ oyage. 
 
 The first duty is to provide a vessel tight and staunch, and furnished 
 with all tackle {b) and apparel necessary for the intended voyage {c); 
 for if the merchant suffer loss or damage b}^ reason of any insuffi- 
 ciency of these particulars at the outset of the voyage, he will be 
 entitled to a recompense [d) .] Before the 39 & 40 Vict. c. 80, it was 
 
 (£) As to insufficient anchors, see iZfOTi'soyi (d) The case o^ Wedderlurn v. Bell, {I 
 
 V. Douglas, 3 Ad. & E. 396. As to testing Campb. Rep. 1) was an action on a policy 
 
 and sale of anchors and chain cables, see of insurance on the ship Minorca, at and 
 
 27 & 28 Vict. c. 27 ; 31 & 35 Vict. c. 101 ; from Jamaica to Loudon. The ship sailed 
 
 37 & 38 Vict. c. 51. from England with convoy, but parted from 
 
 (c) [Emerigou, torn. 1, pp. 373, 374, 375. the fleet ; and beiug no more heard of, was 
 
 Roccus, not. 19, 57, 69. Ordinance of supposed to have foundered in a hurricane. 
 
 Rotterdam, 2 Magens, p. 101, art. 124. The defence was, that the ship was not 
 
 MoUoy, book 2, chap. 2, sect. 10. Well- ])roperly equip]ied with sails. It appeared 
 
 wood's Sea Laws, tit. 7, p. 72.] Kupetoff that her sails to be used in stormy weather 
 
 V. Wilson, 45 L. J. Q. B. 436; L.R.I, were in good condition, but that her maiu- 
 
 Q. B. D. 377 ; Cohen v. Davidson, 46 L. J. top-gallant sails and studding sails, which 
 
 Q. B. 305; L. R. 2 Q. B. D. 455. As to send' are useful in light breezes, were rotten iiud 
 
 ing ships to sea in such an unseaworthy almost unserviceable. Lord Ellenborotjgii 
 
 state as to endanger human life, and as to said, "The hull of the ship in this case was 
 
 the jiower to detain such ships, see sutKcient and seaworthy, but it appears 
 
 39 & 40 Vict. c. 80. that when she left Jamaica her sails were
 
 282 
 
 DUTIES OF MASTER AXD O^YNEES. 
 
 Part IV. he\d tliere was no implied Avarranty ou tlie part of a shipowner that his 
 
 ship was seaworthy Avhen contracting M'ith a seaman to make a voyage 
 
 in her («). By sect, o of this statnte^ in every contract of service 
 between the owner of a ship and the master or any seaman thereof, 
 and in every instrument of apprenticeship Avhereby ariy person is 
 bound to serve as an apprentice on board any ship, there is implied 
 a certain obligation as to insuring the seaworthiness of the ship. 
 
 [An insufficiency in the furniture of the ship cannot easily be 
 unknown to the master or owners; bnt in the body there maybe 
 latent defects unknown to both. The French ordinance directs that 
 if the merchant can prove that the vessel, at the time of sailing, Avas 
 incapable of performing the voyage, the master shall lose his freight, 
 and pay the merchant his damages and interest (b). Valin, in his 
 commentary npon this article, cites an observation of Weytsen, 
 " That the pnnishment of the master in this case ought not to be 
 thought too severe, because the master, by the nature of the contract 
 of affreightment, is necessarily held to warrant that the ship is good, 
 and perfectly in a condition to perform the voyage in question, under 
 the penalty of all expenses, damages, and interest.^' And he himself 
 adds that this is so, although before its departure the ship may have 
 been visited according to the practice in France, aud reported 
 sufficient ; because on the visit the exterior parts only of the vessel 
 are surveyed, so that secret faults cannot be discovered, " for which,] 
 
 liighly defective. It is not enough that a 
 ship is supplied with such sails as are 
 essential to her safety from the perils of 
 the sea, and which might enable her, if not 
 intercepted, at some period or other to 
 complete her voyage, she must he rendered 
 as secure as possible from capture by the 
 enemy, as well as from the dangers of the 
 >\ iiids aud waves. But here the Minorca 
 appears to have been deficient in sails, on 
 which her speed might materially depend ; 
 and, if so, the risk being thereby greatly 
 increased, the policy never attached, and 
 this action cannot be supported." "With 
 respect to insufficiency of such particulars 
 after the commencement of the voyage, 
 resulting from the negligence or default of 
 the master and crew, as it aifects the lia- 
 l)ility of insurers, see HoUingsworth v. 
 Brodrick, 7 Ad. & Ell. 40 ; and Dixon v. 
 Sadler, 5 iNl. it W. 105. See the observa- 
 tions of Baron Pakke, affirmed S M. A: W. 
 IVo, and IVhUe v. Crisp, 10 Ex. 312, and 
 see post, sect. 3. To a declaration alleging 
 that the vessel was not seaworthy at the 
 I'ommencement of the voyage, whereby the 
 plaiutilf was prevented fron^ insuring, a 
 jilea that before any damage, loss, or pre- 
 judice accrued to the plaintitf, the vessel 
 w as made seaworthy, is no answer and bad. 
 Dunbar v. Smaithwade, 4 W. K. Q. B. 
 p. 68. Where by the terms of a charter- 
 
 party, a ship was to he "tight, staunch, 
 and strong, and iu every way fitted for the 
 voyage, and part of the freight was to he 
 paid in advance, on the ship having sailed, 
 less 5 per cent, for insurance, interest, and 
 connnission," and the ship having gone to 
 sea was lost before payment of the advance 
 freight, it was held in a suit for its re- 
 covery, that a plea alleging that the ship 
 was not tight, staunch, &c., at the com- 
 mencement of her voyage, by reason of 
 which she was lost, was a good answer to 
 the action, for by the term of the charter- 
 party, the advance freight was to he at the 
 charterer's risk, and to be insured by him, 
 and he was not bound to pay it until the 
 ship was in such a condition that a policy 
 of insurance on it would attach. Thompson 
 V. GiUespi/, 5 E. & B. 209; 2-i L. J. Q. B. 
 310. In the same case the ship having 
 gone out of dock to save a spring tide, 
 with her rigging and equipment incom- 
 plete, and part of her crew absent, and 
 anchored in the roads, where she Avas lost, 
 the master, who had not then signed the 
 bills of hiding, being on shore; a vei'dict 
 on a plea that the ship had not sailed pur- 
 suant to charter-party, was determined to 
 have been properly entered for the defen- 
 dant. 
 
 (a) Couch V. Sfeel, 3 E. & B. 102. 
 
 (i) Liv. 3, tit. 3, dii Fret, art. 12.
 
 1. TREPAEATION FOE VOYAGE. 283 
 
 [by consequence/' says lie^ "the owner or master remains always Chap. 5. 
 responsible ; and this the more jnstly, because he cannot be ignorant 
 of the bad state of the ship; but even if he be ignorant^ he must still 
 answer, being necessarily bound to furnish a ship good and capable 
 of the voyage." Pothier {c), taking notice of this article, and of the 
 commentary upon it, declares his own opinion (in conformity, as he 
 observes, to the general principles of law established in his own 
 treatise on the contract of letting to hire) to be, that if the ship has 
 been visited and reported sufficient, the master or owner shall not be 
 answerable for damages occasioned by a defect which they did not 
 nor could know ; but he agrees that they shall lose their freight (d) . 
 It may be observed, however, that defects of this sort cannot exist 
 unless occasioned by the age or particular employment of the ship, or 
 some accidental disaster that may have happened to it ; all of which 
 ought to 1)e known to the owner, and ought to lead to an examination 
 of the interior as well as exterior parts. And indeed this contract, 
 although greatly partaking of the nature of the contract of letting to 
 hire, is not precisely the same, but includes in itself a warranty 
 beyond that which is contained in the contract for letting to hire. 
 In a charter-party, the person who lets the ship covenants that it is 
 tight, staunch, and sufficient ; if it is not so, the terms of the cove- 
 nant are not complied with (e), and the ignorance of a covenantor 
 can never excuse him. And with regard to a general ship. Chief 
 Justice Holt, in his elaborate argument on the law of bailments, 
 distinguishes the contract made for the carriage of goods from the 
 contract of letting to hire ; and speaking of the former, when made 
 by a person in a public employment^ says, "^Thc law cliarges the 
 person (viz., common carrier, hoyman, master of a ship) thus entrusted 
 to carry goods against all events but acts of God and of the KingV, 
 enemies ;" so that a common carrier is an insurer against all perils 
 or losses not within the exception (/) ; and the contract of insurance, 
 properly so called, is clearly void if the ship at the commencement of 
 the voyage be not seaworthy, although the person who has effected 
 the insurance be ignorant of that circumstance (^).] 
 
 (f) [Traite de Cluirtc-partie, num. 30. voile, il ctait hors d'etat de iiaviguer. La 
 
 The author here refers to his own excellent preuve est admissible nonobitant, et contre 
 
 Traite de Louage, part 2, cliap. 1, sect. 4, les certijicats de rlsite au depart. — Code do 
 
 l)ar. 2. But it rather appears to me that Commerce, iirt. 297. 
 
 the rules there laid down by himself warrant (e) Tlie law of the United .States of 
 
 the conclusion, that in this instance the America is the same : see American edit, by 
 
 (iwncr and master ought to be responsible >Story, p. 222. So also is the Scotch law. 
 
 for the loss — "Lorsque lehjcateur devoitpar "Such ordinary hazards as occur not by 
 
 sa profession etre iiiforme dti vicede la chose stress of weather, or any extrinsic accident, 
 
 loiiee il est teim des dommages iiiteri-ts du but only from the ship and her furniture, 
 
 conducteur, sans qu'ilsoit besoin de chercher, lie not upon the merchant, nor are relevant 
 
 si ejfectivement il en a eu coniwissance oh to free the shipper, who nnist have the ship 
 
 lion." And he instances the case of a cooper sufficient at his peril." — 1 Bell's Com. 4th 
 
 or shopkeeper, letting casks made of bad edit. 550. — Jlr. Justice Shee. 
 
 wood.] (/) Coggs V. Bernard, 2 Lord. Kaym. 
 
 {d) Le capitaiiie perd son fret, et repond 909. 
 
 des dommajcs inl('rets de Vaffreleur, si {(/) Park on Insurance, ch. 11. 
 celui-ci pro'.ive que, lorsqne le navire a fait
 
 284 DUTIES OF MASTER AND OWNEES. 
 
 Part IV. [ludeetl, iu a case in which it appeared that the owner of a lighter, 
 
 employed in conveying goods from a quay at Hull to sloops in the 
 dock, had, together with many other persons engaged in the same 
 business, given public notice, " That they would not be answerable 
 for any loss or damage which should happen to ' any cargo which 
 should be put on board any of their vessels, unless such loss or 
 damage should happen to be occasioned by want of ordinary care and 
 diligence in the master or crew of the vessel, when and in such case 
 they would pay to the sufferers 10/. per centum upon such loss or 
 damage, so as the Avhole amount of such payment should not exceed 
 the value of the vessel on board whereof such loss or damage should 
 have happened, and the freight of such vessel.^' And they gave 
 further notice, " That any merchant or other persons desirous of 
 liaving their goods or merchandises carried free of any risk, in 
 respect of loss or damage, whether the same should happen from the 
 act of God or otherwise, might have the same so carried by entering 
 into an agreement for the payment of an e.vtra freight proportionable 
 to the accepted responsibility, on application to them or their respec- 
 tive agents.^"" It was held, that the owner was answerable to the full 
 extent of the damage done to goods by reason of the leakiness and 
 insufficiency of his lighter, although the merchant Avas acquainted 
 witli the notice Ijefore he sent the goods on board. In delivering the 
 judgment of the court on this occasion, the learned Chief Justice, 
 Lord Ellexborough, said, ''In every contract for the carriage of 
 goods between a person holding himself forth as the owner of a 
 lighter or vessel ready to carry goods for hire, and the person putting 
 goods on board or employing his vessel or lighter for that purpose, it 
 is a term of the contract on the part of the carrier or lighterman 
 ii)ijjUed by lav:, that his vessel is tight, and fit for the purpose or 
 employment for Avhich he offers and holds it forth to the public. It 
 is the very foundation and immediate substratum of the contract that 
 it is soj the law presumes a promise to that eftect on the part of the 
 carrier without any actual proof; and every reason of sound policy 
 and public convenience requires it should be so." x\nd the court 
 considered the insufficiency of a lighter " as a personal neglect of the 
 owner, or more properly as a non-performance on Jiis part of what he 
 had undertaken to do — fir., to provide a fit vessel for the purpose ;" 
 and thought it clear that the only object of the notice ''was to limit 
 the responsibility of the owners, in those cases only where the law 
 would otherwise have made them answei* for the neglect of others, 
 and for accidents which it might not be within the scope of ordinary 
 care and caution to provide against " [a] . 
 
 And not only must the ship and her furniture be sufficient for the 
 vovage, but she must be also fm-nished at the time of sailing (6) with 
 a competent master, and an adequate number of persons of skill and 
 ability to navigate her.] 
 
 (a) L'/on V. Mells, 5 East, 428. (6) Fbrskaw v. Ckahert, 3 B. & B. 158. 
 
 But see Weir v. Aberdeen, 2 B. & Aid. 320.
 
 1. PREPAEATION FOE VOYAGE. 
 
 285 
 
 She is not fit for the voyage unless she sails with a crew competent Chap. 5. 
 for the voyage^ considering its length and the circumstances under 
 Avhich it is undertaken. Therefore_, where on a voyage from the 
 Mauritius to London there was no one on board competent to supply 
 the captain^s place^ he being ill when he went on board^ Lord 
 Tenterdev, in an action on a policy of insurance, held the under- 
 writers to be discharged (c) . 
 
 [And for sailing down rivei's, out of harbours, or through roads, kc, 
 where, either hv usage or the laws of the country, a pilot is required, 
 a pilot must be taken on board (f/).] The master, when bound to 
 take a pilot, is liable to heavy penalties, if, after a qualified one has 
 offered to take charge of the ship, he does not employ him. And 
 no owner or master of any ship shall be answerable to any person 
 whatever, for any loss or damage occasioned by the fault or inca- 
 pacity of any qualified pilot acting in charge of such ship within 
 any district where the employment of such pilot is compulsory by 
 law (e). 
 
 [The manner of taking goods on board, and the commencement of Loading (Z). 
 the master's duty in this respect depend on the custom of the particular 
 place. More or less is to be done by wdiarfiugers or lightermen accord- 
 ing to the usage. If the master receives goods at the quay or beach, 
 or sends his boat for them, his responsibility commences with the 
 receipt {(/). In the port of London, with respect to goods intended to 
 be sent coastwise, it has been held, that the responsibility of the 
 wharfinger ceases by delivery of them to the 7nate of the vessel upon 
 the wharf (h). As soon as any goods are put on board, the master 
 must provide a sufficient number of persons to protect them (i) \ for] 
 
 (c) Clifford V. Biinte)', M. & M. 103. 
 See 3 Kent's Conim. 287, note (a); Tail v. 
 Levi, 14 East, 481. 
 
 (rf) Law V. MoUingsworth, 7 Term. Rep. 
 160. Fhillip.i V. Headlam, 2 B. & Ad. 384. 
 See the observations of Bai'un Parke on 
 these cases as they aft'ect the liability of 
 insurers, in the case of J)ixon v. Sadler, 
 5 M. & Wels. 405; [Emerigon, torn. 1, 
 p. 375; Molloy, book 2, eh. 2, sec. 7; 
 Roccus, not. 59, 62 ; French Ordinance, 
 liv. 2, tit. 1, Du Capitaine, art. 8. And 
 see — 1 
 
 Ordinance of Wisbuy, art. 59, 60 . • | ^^ 
 Ordinance of Antwerp, 2 Magens, p. 16, | "o 
 
 art. 9 I •£ 
 
 Well wood's Sea Laws, pp. 23, 26 . . '^ 
 Ordinance of Rotterdam, 2 Magens, 
 
 p. 103, art. 139 
 
 Ante, Part III, chap. 7] 
 
 In Sedmond v. Smith, 8 Scott's N. R. 
 263, it was held that a contract of insurance, 
 made in breach of the regulations of the 
 5 & 6 Wm. 4, c. 19, by which masters of 
 British ships are prohibited from carrying 
 to sea seamen who have not signed the 
 sliip's articles, was not therefore void. 
 
 (e) 17 & 18 Vict. c. 104, ss. 353, 376, 
 388, ante, p. 159. 
 
 (/) As to the power of the Board of 
 Trade to detain vessels so loaded as to be 
 dangerous to human life, see 39 & 40 Vict, 
 c. 80, s. 6, et seq. As to foreign ships, see 
 s. 13 ef seq. As to ship not being so 
 loaded as to submerge in salt water the 
 centre of the disc required to be marked on 
 ship, see s. 28 of this Act. 
 
 iff) [Molloy, book 2, chap. 2, sect, 2; 
 Roccus, not. 88 ; Wellwood, tit. 9, Dig. 4, 
 9,3.] 
 
 (h) Cobban v. Lowne, 5, Esp. N. P. C. 
 41. 
 
 (0 [Morse v. Slue, 1 Vent. 190, 238; Sir 
 T. Raym. 220. Sick v. Kneeland, Hob. 17; 
 2 Cro. 330; Dig. 4, 9. 1, 1. ''Nisi hoc 
 esset statutum, materia daretur cnm furibus 
 adversus eos, qitos recipi^mt, coenndi. cum 
 ne nunc quidem abstineant hujusmodifrau- 
 dihtis." But the word fures here means 
 thieves only, and not robbers, who come 
 with a superior and irresistible force : they 
 are called latrones. Thus by the Digest, 
 17, 2, 52, 3, a partner who has the care of 
 the joint property is not answerable "5i id']
 
 286 DUTIES OF MASTEE AND OWNERS. 
 
 Part IV. [even if the crew he overpowered bj' a superior foree, and the goods 
 stolen^ while the ship is in a port or river within the body of a eounty, 
 tlie masters and owners will be answerable for the loss, although they 
 have been guilty of neither fraud nor fault : the law in this instanee 
 holding them responsible from reasons of public policy, and to prevent 
 the combinations that might otherwise be made with thieves and 
 robbers. See post, Chap. 6 of this Part. 
 
 It is usual for the master or mate to sign a receipt for goods at 
 the time of the shipment^ and deliver it to the shipper. When this is 
 done^ the master must take care not to deliver a bill of lading until 
 the receipt is returned to him ; for otherwise he may place himself 
 under a twofold responsibility— a responsibility to the shipper^ in 
 case he shall require the goods to be delivered to his own order^ and 
 have a legal right to do so; and a responsibility to a holder of the 
 bill of lading, who may be induced to purchase the goods on the 
 faith of it («). And if such a receipt is reqiiired, it ought to be given; 
 and if not given^ still the master must take care not to deliver a bill 
 of lading to any person but the shipper^ without his orders^ for if he 
 does^ he may incur a twofold responsibility in the same way as if the 
 required receipt had been given {b). 
 
 it is in all cases the duty of the master to provide ropes^ &c., 
 proper for the actual reception of the goods into the ship [c] . And 
 if a cask be accidentally staved in letting it down into the hold of the 
 ship, the master must answer for the loss [d). The ship must also be 
 furnished with proper dunnage (pieces of wood placed against the 
 sides and bottom of the hold) to preserve the cargo from the effects 
 of leakage, according to its nature and quality [e). And care must be 
 taken by the master (unless by usage or agreement this business is to 
 be performed by persons hired by the merchant) (/) so to stow and 
 arrange the different articles of which the cargo consists that they] 
 
 [latrocinio ant incendio perierit," but he is {b) Ruel- v. Hatfield, 5 B. & A. 632. 
 
 answerable, ''si a furibns si<breptum sit;" (c) Laws of Oleron, art. 10. Laws of 
 
 upon which Ciothofred observes, "ad versus Wisbny, art. 22. Wellwood, tit. 9. 
 
 hxtrones panim prodest custodia; advei-sns (d) Goffv. Ctiid-ard, cited 1 Wils. 282. 
 
 fures prodesse potest, si qui'/ advif/ilet. (e) Ordin. of Rotterdam, 2 Magens, 101, 
 
 Ij-dtrocmium fafale damnum, sen casus for- arts. 125, 126. 
 
 tuituseft; at no a fnrtnm." And the words (/) \ charter-party pi'ovided tliat the 
 
 of the Digest, title Xaufce. caupones, stahu- cargo should be put on board the plaintiflf's 
 
 larii, Sfc, 4, 9, 3, are, " Aisi si quid damno ship at the defendant's expense. The 
 
 fatali contingat; inde Laheo scribit, si quid master, upon the refusal of the defendant's 
 
 naufragio, aut per vim piraiarum perierit, agent to have the goods put on board, em- 
 
 nonesset iniquum exceptionem ei dari ; idem ployed men to do it; and it was held that 
 
 crit dicendum si in stalulo aid in caupona the expense thus incurred might be re- 
 
 ris major contigerit." So that uur law at covered by the plaintiff from the defendant 
 
 present is strictt-r in the case of carriers in an action on an implied contract to 
 
 than in the civil law; but it is said to have repay them. Fletcher v. Gillespie, 3 Bing. 
 
 been the same formerly, and not to have G35. In general, the owners of the ship 
 
 charged a carrier in the case of robbery, and master are liable for injury caused by 
 
 unless he travelled by dangerous ways, or negligent stowage {SacJc v. Ford, 13 C. B. 
 
 at unseasonable hours. See Jones on Bail- (x.s.)90; 32 L.J. C. P. 12; Anglo- African 
 
 ments, p. 103, piost.'] Co. v. Lamzed, L. E. 1 C. P. 226); but they 
 
 {a) [ Cra ven v . JRgder, 6 Taunt. 433, and are not so liable when the goods arc stowed 
 
 2 Marsh. 127. And see Saioes v. Watson, by the shipper's oa\ii stevedore without in- 
 
 2 B. & C. 540.] See the cases, 'Tw/e, p. 2.59. terference on the part of the master or
 
 PREPARATION FOR VOYAGE. 
 
 287 
 
 [may not be injured by each other, or by the motion or leakage of the Chap. 5. 
 
 ship {g). And more must not be taken on board than the ship can 
 
 conveniently carry, leaving room for her own furniture and the pro- 
 visions of the crew, and for the proper working of the vessel (//) . 
 Neither may the master take on board any contraband goods, 
 whereby the ship and other parts of the cargo may be liable to for- 
 feitui^e or detention (/) .] 
 
 As to the restrictions on the carriage of dangerous goods, see 
 36 & 37 Vict. c. 85, ss. 23—28. As to gunpowder, &c., see 38 Vict. 
 c. 17, Explosives Act, 1875; 39 & 40 Vict. c. 36, s. 139; sec 
 34 & 35 Vict. c. 105, the Petroleum Act, 1871, amended by 
 42 & 43 Vict. c. 47. 
 
 By 39 & 40 Vict. c. 36 (the Customs Consolidation Act), s. 100, "'no Provisions in 
 person shall export any warehoused goods, or goods liable to duties Customs Act. 
 of customs transhipped, or goods entitled to drawback on exporta- 
 tion, nor shall enter any such goods for exportation from the U. K. 
 to parts beyond the seas, in any ship of less burden than 40 tons." 
 
 By sect. 101, "the master of every ship in which any goods are to 
 be exported from the United Kingdom to parts beyond the seas, or 
 his agent, shall, before any goods be taken on board, except as is 
 hereafter provided, deliver to the collector a certificate from the 
 proper officer of the due clearance inwards or coastwise of such ship 
 of her last voyage, and shall also deliver therewith an entry outwards 
 of such ship, verified by his signature in the Form No. 6 in 
 Schedule B {k) to this Act, and containing the several particulars 
 
 owniers. BlaTcie v. Stemhrldye, 28 L. J. 
 C. P. 329 ; 6 C. B. (x.s.) 894, 911 ; 29 L. J. 
 C. P. 212 ; Swainson v. Garriel; 2 L. J. Ex. 
 255 ; GilJcison v. Middleton, 2 C. B. (x.s.) 
 134 ; 26 L. J. C. P. 209. A stevedore is a 
 person whose business it is to stow or dis- 
 charge cargoes. As to the shipowners 
 hability when the ship is chartered in the 
 case of a general ship, see Sandeman v. 
 Scurr, L. K. 2 Q. B. 80; the «SY. Cloud, 
 B. & L. Ad. 4; the Figlia Ma jf) lore, L. R. 
 2 Ad. 106. 
 
 id) [Wellwood, p. 29. Ordin. of Antwerp, 
 2 Magens, p. 16, art. 8. French Ordin. 
 liv. 2, tit. Du Capitaiue, art. 12. Laws of 
 
 {F) The following is this form : — 
 
 Wisbuy, art. 23. Laws of Oleron, art. 11, 
 and Cleirac thereon.] As to stowing gi-ain, 
 &c., see 39 & 40 Viet. c. 80, s. 22. As to 
 deck-loads of timber in winter, see s. 24 of 
 same statute. 
 
 (h) [Roccus,not. 30. Ordin. of Rotterdam, 
 2 Magens, p. 102, art. 127.] Weir v. Aber- 
 deen, 2 B. & Aid. 320. As to overloading so 
 as to endanger human life, see 39 & 40 Vict, 
 c. 80, ss. 4, 13. 
 
 {i) [MoUoy, book 2, chap. 2, sect. 7. Roc- 
 cus, not. 66. Wellwood, tit. 9.] Seymour 
 V. London and Provincial Marine In- 
 surance Co., 41 L. J. C. P. 193; 42 L. J. 
 C. P. Ill (n). 
 
 ENTRY OUTWARDS. 
 
 Port of 
 
 Skip s Namk. 
 
 Tomiage. 
 
 ilas'er's 
 Name. 
 
 
 If British, Name of Port 1 If Foreign, Name of Cnimtry to 
 of her Registry. | which she belongs. 
 
 Dcstinaiion. 
 
 
 
 
 Lying at. 
 
 . Dock or Station. 
 
 (Signed) . 
 
 Date of Entry, 3Iaster or Agent. 
 
 If ship shall have commenced her lading at any other port (name of such port).
 
 288 DITTIES OF MASTER AND OWXERS. 
 
 Part IV. indicated in or required thereby, or in such other form or manner as 
 the Commissioners of Customs may direct ; and if such ship shall 
 have commenced her lading at some other port, the master shall 
 deliver to the proper officer the clearance of such goods from such 
 other port, and if any goods be taken on board any ship at any port 
 before she shall have entered outwards at such port (unless a stiffen- 
 ing order, when necessary^ shall be issued by the proper officer to 
 lade any heavy goods for exportation on board such ship) , the master 
 shall forfeit the sum of 100/. ; provided that on the arrival at auy 
 port m the United Kingdom of auy ship about to deliver her cargo 
 at more than one port in the United Kingdom, it shall be lawful, 
 subject to such regulations as the Commissioners of Customs may 
 deem necessary, to allow the entry outwards of such ship, and to 
 permit the shipment of goods, other than spirits or tobacco, for 
 exportation in such ship to the foreign destination for which such 
 ship sliall be entered outwards, before the Avhole of the goods 
 imported in such ship sliall have been discharged therefrom, the 
 complete separation of such goods from the inward cargo being- 
 effected to the satisfaction of the collector or other proper officer of 
 the port : Provided also, that on any ship commencing to load goods 
 for exportation to parts beyond the seas not having on board any 
 drawback or other goods liable to duties of customs or excise, and 
 about to proceed to any other port in tlie United Kingdom to 
 complete her loading, it shall be lawful, subject to such regulations 
 as the Commissioners of Customs may deem necessary, to permit 
 such ship, notwithstanding any provisions to the contrary, to convey 
 goods not entitled to drawback or liable to duties of customs or 
 excise from the port at which such ship shall commence loading to 
 any other port or ports in the United Kingdom for delivery there, 
 the complete separation of such goods from the cargo to be exported 
 to be effected to the satisfaction of the collector or other proper 
 officer at the port of shipment/^ 
 
 By sect. 102, '^ no warehoused or draAvback goods shall be shipped, 
 put off, or water-borne to be shipped for exportation from any port or 
 place in the United Kingdom on Sundays or public holidays, except 
 by special permission of the Commissioners of Customs, nor from any 
 place not being a legal quay, wharf, or other place duly appointed 
 for such purpose, nor without the presence or authority of the proper 
 officer of Customs, nor before due entry outward of such ship and 
 due entry of such goods, nor before due clearance thereof for ship- 
 ment ; and any such goods shipped, put off, or water-borne to be 
 shipped contrary hereto shall be forfeited ; and it shall be lawful for 
 such officers to open and examine all goods shipped or brought for 
 shipment at any place in the United Kingdom, and the opening for 
 that purpose of packages containing such goods, and the weighing, 
 repacking, landing (when water-borne), and the shipping thereof 
 shall be done by or at the expense of the exporter.^^ 
 
 By sect. Ill, " the master or owner of every ship in which any goods 
 shall be exported shall, by himself or his agent, within six days after the 
 final clearance of such ship, deliver to the proper officer of Customs a
 
 1. PREPARATION FOPv TIIE VOYAftE. 289 
 
 certificate^ if the ship be a steamer trading to a foreign port^ of the Chap. 5. 
 quantity of coals or fuel shipped for use on the voyage, and a mani- 
 fest of all the goods shipped, containing the marks and numbers and 
 the number and description of the packages, with the names of the 
 consignors thereof according to the bills of lading relating thereto^ 
 and shall make and subscribe a declaration that such manifest con- 
 tains a true account of all the cargo of such ship, unless a specifica- 
 tion comprising all the particulars hereinbefore required to be given 
 be delivered to the proper officer of customs, with a like declaration 
 that the same contains a true account of the whole cargo of the ship ; 
 and the master, owner, or agent, acting herein and subscribing the 
 declaration, on failure to comply with any of the foregoing require- 
 ments relating to the delivery and verification of any specification or 
 manifest, or otherwise incident thereto, shall for every such offence 
 forfeit 5//^ (a). 
 
 By sect. 126, "the master of every ship of the burden of forty tons 
 or upward departing from any port in the United Kingdom upon a 
 voyage to parts beyond the seas shall, upon due authority and request 
 made by him, and upon such terms and conditions as the Commis- 
 sioners of Customs may direct, receive from the export officer an 
 order for the shipment of such stores as may be required and allowed 
 by the collector or other proper officer for the use of such ship, with 
 reference to the number of the crew and passengers on board, and 
 the probable duration of the voyage on which she is about to depart; 
 and every such request shall be made in such form and manner as the 
 collector or other proper officer shall require, and shall be signed by 
 the master or owner of the vessel; and the master, or his agent duly 
 authorized by him in writing for that purpose, shall deliver to the 
 export officer the stores content, containing the particulars of such 
 stores, and shall make out and subscribe thereon, in the presence of 
 the proper officer, a declaration that the contents thereof are true, 
 and that all the requirements of the Merchant Shipping Acts respect- 
 ing outward-bound ships have been complied with, and also an account 
 of the stores so shipped, together with any other stores then already 
 on board, and the latter when signed by the export officer and coun- 
 tersigned by the collector or other proper officer, shall be the vic- 
 tualling bill; and no stores shall be shipped for the use of any ship, 
 nor shall any articles taken on board any ship be deemed to be stores, 
 except such as shall be borne iipon such victualling bill ; and if any 
 such stores shall be relanded at any place in the United Kingdom 
 (without the sanction of the proper officers of Customs), the same 
 shall be forfeited, and the master and owner of the ship shall each be 
 liable to a penalty of treble the value of such stores, or 100/,^ at the 
 election of the Commissioners.-'^ 
 
 By sect. 127, "if there be on board any ship any goods being part of 
 the inward cargo reported for exportation in the same ship, the 
 master shall before clearance outwards of such ship from any port in 
 
 (rt) See 31 & 35 Vict. c. 103, s. 12. 
 U
 
 290 
 
 DUTIES OF MASTER AND OWNEES. 
 
 Peirt IV. the United Kiugdom, deliver to the searcher a copy of the report 
 inwards of such goods, certified by the collector or other proper 
 officer, and if such copy be found to correspond with the goods so 
 remaining on board, the export officer shall sign the same, to be 
 filed with the certificates or shipping bills, if any, and victualling bill 
 of the ship.^^ 
 
 By sect. 128, "before any ship shall be cleared outwards from the 
 United Kingdom, the master, or other person authorized in writing 
 by him, shall attend before the collector or other proper officer, and 
 shall answer all such questions as shall be demanded of him by such 
 collector or other proper ofiicer concerning the ship, the cargo, and 
 the voyage, and shall deliver to the collector or other proper officer 
 a content of such ship in the Form («), No. 10 in Schedule B. to this 
 
 ((t) The following is this form : — 
 
 Port of 
 
 CONTENT. 
 
 Ship's Name Number 
 
 and I of 
 
 Destination i Tons. 
 
 Number 
 
 of 
 Boats. 
 
 If British, Port of 
 
 Registry. If Foreign, 
 
 the Country. 
 
 Number 
 
 of 
 
 Crew. 
 
 Name 
 
 of 
 Master. 
 
 With or with- 
 out Passengers 
 or Troops. 
 
 Waeehoused Teanshipme>"t, Dbawback, axd Eesteicted Goods. 
 
 ilarks and Numbers, if any, of Packages. 
 
 Number and Description of 
 Packages. 
 
 Particulars to be stated accordiii? to the above headingrs. 
 
 Cleared. 
 
 Examined. 
 
 Dated 
 
 (Signed). 
 
 Searcher. 
 
 I do declare that the above content is a true account of all goods above described, 
 shipped, and intended to be shipped on board the above-named ship, and correct in all 
 particulars. 
 
 (Signed) 
 
 Master. 
 
 Signed and declared this day of 
 (Signed) 
 
 , before me 
 
 Collector or proper Officer of Customs.
 
 1. PEEPAEATION FOR THE VOYAGE. 291 
 
 Act, or to the same effect, and containing the several particulars Chap. 5. 
 
 therein required as far as the same can be known by him, and shall 
 
 make and subscribe the declaration at the foot thereof in the presence 
 of the collector or other officer, unless such content shall be in any 
 case dispensed with by the Commissioners of Customs under such 
 regulations as they may see fit, and before clearance shall deliver the 
 / certificate, if any, to the collector or other proper officer, who shall 
 file them together with a copy of the report inwards, if any, of goods 
 reported for exportation in such ship, and the victualling bill, with 
 a label attached and sealed thereto in the form and to the effect 
 following : — 
 
 (Seal.) 
 
 Clearance Label. 
 
 Number of certificates [Number in figures) . 
 Ship {Name of ship). 
 Master [Name of master). 
 Date of clearance 
 
 Signatures of Collector or other \ 
 proper Officers of Customs. ) 
 
 And such label, when filled up and signed by the proper officers, 
 shall be the clearance and authority for the departure of the ship."^ 
 
 By sect. 129, " when any ship having been cleared at one port pro- 
 ceeds to take in goods at any other port, the master shall, after due 
 shipment of such goods at such other port, deliver to the collector or 
 other proper officer there an additional like content of the goods so 
 shipped, and so on from port to port until final clearance outwards of 
 the ship, and in each instance the additional certificates, if any, and 
 other necessary documents, shall be attached to the label used at the 
 first port of departure, and be sealed in like manner.''^ 
 
 By sect. 130, *' if any goods for the exportation of which in any ship 
 bond shall have been given, shall not be duly shipped before the 
 departure of such ship, such goods shall be forfeited unless due 
 notice of the non-shipment thereof shall be given to the proper officer 
 immediately after such departure, in order that he may certify the 
 short shipment thereof; and if such goods shall not within fourteen 
 days after the final clearance of the ship be re-warehoused or re- 
 entered for exportation utider bond in some other ship, the person 
 entering the same shall forfeit the sum of ol. ; and if any goods shall 
 be unshipped without the sanction of the proper officer of customs 
 in any part of the United Kingdom from any ship entered outwards, 
 such goods shall be forfeited, and the master of such ship and every 
 person concerned in such unshipment shall forfeit 100/., or treble the 
 value of the goods so unshipped or landed.^' 
 
 By sect. 132, *'if any ship having on board any goods shipped as 
 cargo, or any goods reported inwards for exportation in such ship, or 
 
 u 2
 
 292 DUTIES OF :\[ASTER AND OWNEES. 
 
 Part IV. any stores liable to duty or entitled to drawback, shall depart from 
 
 any port witliont being dulv cleared, the master shall forfeit the 
 
 sum of 100//^ 
 
 By sect. 133, "if any ship shall depart in ballast from the United 
 Kingdom for parts beyond the seas, not having any goods on board 
 except stores borne upon the victualling bill, nor any goods reported 
 inwards for exportation in such ship, the collector or other i)roper 
 officer may, on the application of the master, clear such ship in 
 ballast ; but the master of such ship shall answer to the collector or 
 other proper officer such questions touching her departure and desti- 
 nation as shall be demanded of him ; and ships having only passengers 
 with their baggage on board, and ships laden only Avith chalk or slate, 
 shall be deemed to be in ballast ; and if any ship having any such 
 stores on board, or any goods for exportation in the same ship, shall 
 depart without being duly cleared, the master shall forfeit 100/.'^ 
 
 Bv sect. 134, " any officer of customs may go on board any ship 
 after clearance outwards within the limits of any port in the United 
 Kingdom, or within one league of the coast thereof, and may cTemand 
 the ship's clearance, and if the master shall refuse to produce the 
 same and answer such questions concerning the ship, cargo, and 
 intended voyage as mav be demanded of him, he shall forfeit the sum 
 of 5/." 
 
 By sect. 135, '• if any officer of customs shall place any lock, mark, 
 or seal upon any stores or goods taken from the warehouse without 
 payment of duty as stores on board any ship or vessel departing from 
 any port in the United Kingdom, and such lock, mark, or seal be 
 wilfully opened, altered, or broken, or if such stores be secretly con- 
 veyed away, either while such ship or vessel remains at her first port 
 of'departure, or at any port or place in the United Kingdom, or on 
 her passage from one such port or place to another before the final 
 departure of such ship or vessel on her foreign voyage, the master 
 shall forfeit the sum of 20/.'^ 
 
 By sect. 136, " if any ship departing from any port in the United 
 Kingdom shall not bring to at such stations as shall be appointed by 
 the Commissioners of Customs for the landing of officers from such 
 ships, or for further examination previous to such departure, the 
 master of such ship shall forfeit the sum of 20/. ; and if any ship 
 shall depart from any port with any customs or other government 
 officer on board, without the consent of such officer, the master shall 
 forfeit 100/.'' 
 
 By sect. 137, "the time at which any goods, unless prohibited as 
 hereinafter mentioned, shall be shipped on board any export ship 
 shall be deemed to be the time of exportation of such goods, and the 
 time of the last clearance of any ship shall be deemed to be the time 
 of departure of such ship, except as to any goods prohibited to be 
 exported as contraband of war, with reference to which the exporta- 
 tion shall be deemed to be the actual time of the ship's departure on 
 p • ■ ns iu ^^^^ outward voyage." 
 
 Customs Act, By sect. 140, " all trade by sea from any one part of the United 
 as to coasting Kingdom 1o any other part thereof shall be deemed to be a coasting 
 trade.
 
 ]. PREPAEATION rOll THE VOYAGE. 293 
 
 trade, and all sliips -while employed therein shall be deemed to be Chap. 5. 
 coasting ships, and no part of the United Kingdom, however situated 
 with regard to any other part, shall be deemed in law, Avith reference 
 to each other, to be parts beyond the seas ; and if any doubt shall at 
 any time arise as to what, or to, or from what parts of the coast of 
 the United Kingdom shall be deemed a passage by sea, the Com- 
 missioners of the Treasury may determine and direct in what cases 
 the trade by Avater from one port or place in the United King- 
 dom to another of the same, shall or shall not be deemed a trade 
 by sea within the meaning of this or any Act relating to the 
 customs." 
 
 By sect. 141, *''' ever}^ foreign ship proceeding either wdth cargo or 
 passengers, or in ballast, on any voyage from one part of the United 
 kingdom to another, or from the Islands of Guernsey, Jersej^, Al- 
 derney, Sark, or ]\lan to the United Kingdom, or from the United 
 Kingdom to any of the said islands, or from any of the said islands to 
 any other of them, or from any part of any of the said islands to any 
 other part of the same, shall be subject, as to stores for the use 
 of the crew and in all other respects, to the same laws, rules, and 
 regulations to which British ships when so employed are now subject ; 
 but no such foreign ship, nor any goods carried therein, shall, during 
 the time she is so employed, be subject to any higher or other rate 
 of dock, pier, harbour, light, pilotage, tonnage, or other dues, duties, 
 tolls, rates, or other charges whatsoever^ or to any other rules as to 
 the employment of pilots, or any other rules or restrictions whatso- 
 ever, than British ships employed in like manner, or goods carried 
 therein, any law, charter, special privilege, or grant to the contrary 
 notwithstanding ; nor shall any body corporate or person having or 
 claiming any right or title to any such higher or other rates, dues, 
 duties, tolls, or othci* charges as aforesaid, be entitled to any compensa- 
 tion in respect thereof under any law or statute relating thereto, or 
 otherwise howsoever." 
 
 By sect. 142, " no goods shall be carried in any coasting ship, except 
 such as shall be laden to be carried coastwise at some port or place 
 in the United Kingdom, and no goods shall be laden on board any 
 ship to be carried coastwise until all goods brought in such ship from 
 parts peyond the seas shall have been unladen ; and if any goods 
 shall be taken into or put out of any coasting ship at sea or over the 
 sea, or if any coasting ship shall touch at any place over the sea, or 
 deviate from her voyage, unless forced by unavoidable circumstances, 
 or if the master of anj^ coasting ship which shall have touched at any 
 place over the sea, shall not declare the same in Avriting under his 
 hand to the collector or other proper officer at the port in the United 
 Kingdom Avhere such ship shall afterwards first arrive, the master of 
 such ship shall forfeit the sum of 100/." 
 
 By sect. 143, "if any goods shall be unshipped from any ship 
 arriving coastwise, or be shipped or water-borne to be shipped to 
 be carried coastwise, on Sundays or holidays, or unless in the presence 
 or with the authority of the proper ofticer of the customs, or unless 
 at such times and places as shall be appointed or approved by him for
 
 29J. 
 
 DUTIES OF MASIER AND OWNEES. 
 
 Part IV. that purpose, the same shall be forfeited, and the master of the ship 
 sliall forfeit the sum of 50/." 
 
 By scet. 14 f, '' the master of every coasting ship shall keep or cause 
 to be kept a cargo-book, stating the names of the ship, the master, 
 and the port to which she belongs, and of the port to which she is bound 
 on each voyage, and shall at every port of lading enter in such book 
 the name of such port, and an account of all goods there taken on 
 board such ship, stating the descriptions of the packages and the 
 quantities and descriptions of the goods therein, and the quantities and 
 descriptions of any goods stowed loose, and the names of the respec- 
 tive shippers and consignees, so far as such particulars are known to 
 him, and shall at every port of discharge of such goods note the 
 respective days on which the same or any of them are delivered out 
 of such ship, and the respective times of departure from every port 
 of lading and of arrival at every port of discharge; and such master 
 shall, on demand, produce such book for the inspection of any officer 
 of customs, who shall be at liberty to make any note or remark 
 therein ; and if upon examination any package entered in the cargo- 
 book as containing foreign goods shall be found not to contain such 
 goods, such package, with its contents, shall be forfeited, or if any 
 package shall be found to contain foreign goods not entered in such 
 book, such goods shall be forfeited; and if such master shall fail 
 correctly to keep such cargo-book, or to produce the same, or if at 
 any time there be found on board such ship any goods not entered in 
 such book as laden, or any goods noted as delivered, or if any goods 
 entered as laden, or any goods not noted as delivered be not on board, 
 the master of such ship shall forfeit the sum of .20/." 
 
 By sect. 145, "^before any coasting ship shall depart from her port 
 or place of lading, an account, with a duplicate thereof, in the Form (a) 
 
 (a) The foUowlug is this form : — 
 
 Port of 
 
 TRANSIRE. 
 
 Ship's Xame. 
 
 Tonnage. 
 
 Port of Registrr. 
 
 Master's Name. 
 
 Whither Bomul. 
 
 Foreign Goods, dis- 
 tinguishing Ware- 
 housed Goods removed 
 under Bond. 
 
 Quantities of Com, 
 
 Grain, Meal, 
 
 Flour, or Malt- 
 
 Goods liable to Duty 
 
 of Excl>c or 
 
 entitled to Drawback 
 
 thereof. 
 
 Here state " Sundry 
 
 other Goods," or 
 
 " Xo other Goods," as 
 
 the case may be. 
 
 (Signed) 
 
 Master. 
 
 Cleaved the 
 
 day of , 187 
 
 (Sigiicd)_ 
 
 Collector or other proper Officer.
 
 1. PREPAKATIOX I'OE THE VOYAGE. 295 
 
 No. 11 in Schedule B, to this Act^ and containing the several parti- Chap. 5. 
 
 culars indicated in or required thereby, and signed by the master, 
 
 shall be delivered to the collector or other proper officer, who shall 
 retain the duplicate, and return the original, dated and signed by 
 liim; and such account shall be the clearance of the ship for the 
 voyage, and the transire or pass for the goods expressed therein, and 
 if the master shall fail to deliver a correct account he shall forfeit a 
 sum of 20/.; provided that the Commissioners of the Customs may, 
 Avhen deemed by them expedient, permit general transires to be given, 
 under such regulations as they may direct, for the lading and clear- 
 ance and for the entry and unlading of any coasting ship and goods^ 
 but the same may be revoked by notice in writing under the hand of 
 the proper officer delivered to the master or owner of any ship or 
 any of the crew on board.^^ 
 
 By sect. 146, '^^ within twenty-four hours after the arrival of any 
 coasting ship at the port or place of discharge, and before any goods 
 be unladen, the transire, with the name of the place or wharf where 
 the lading is to be discharged noted thereon, shall be delivered to the 
 collector or other proper officer, Avho shall note thereon the date of 
 the delivery; and if any of the goods on board such ship be subject 
 to any duty of excise, the same shall not be unladen without the 
 authority or permission of the proper officer of excise ; and if any 
 goods on board any coasting ship arriving in Great Britain or Ireland 
 from the Isle of Man shall be the growth or produce of that isle, or 
 manufactures of that isle from materials the growth or produce 
 thereof, or from materials not subject to duty in Great Britain or 
 Ireland, or from materials upon which the duty shall have been paid 
 and not drawn back in Great Britain or Ireland, the same shall not 
 be unladen until a certificate be produced to the collector or other 
 proper officer from the collector or other proper officer at the port or 
 place of shipment, that proof had there been made in manner re- 
 quired by law that such goods were of such growth, produce or manu- 
 facture, as the case may be; and if any goods shall be unladen 
 contrary liei'cto, the master shall forfeit the sum of 20/. ; and if any 
 goods shall be laden on board any ship and carried coastwise, or be 
 brought to any port or place in the United Kingdom for that pur- 
 pose, or having been brought coastwise shall be unladen in any such 
 port or place contrary to the Customs Acts, such goods shall be 
 forfeited.'^ 
 
 By sect. 147, " any collector or other proper officer of customs may 
 go on board any coasting ship in any port or place in the United 
 Kingdom, or at any period of her voyage, search such ship, and 
 examine all goods on board, and all goods then lading or unlading, 
 and demand all documents which ought to be on board such ship, 
 and may require all or any such documents to be brought to him for 
 inspection, and the master of any ship refusing to produce such docu- 
 ments on demand, or to bring the same to the collector or other 
 proper officer when required, shall forfeit the sum of 20/." 
 
 By sect. 148, " if the master of any ship bringing any goods not 
 liable to duty coastwise from one port of the United Kingdom to
 
 296 
 
 DUTIES OF -MASTER AND OWNERS. 
 
 Part IV. 
 
 Provisions in 
 Customs Acts 
 as to Channel 
 Islands, &c. 
 Documents to 
 he taken in 
 ship. 
 
 anotlicr shall desire to jiroceed Avitli such goods or any of them to 
 parts beyond the soas_, lie may, subject to such regulations as 
 the Commissioners of Customs may see fit, enter such ship and 
 goods outwards for the intended voyage without first landing the 
 same." 
 
 Sects. 149 — 164, relate to the Channel Islands and other British 
 possessions abroad. 
 
 Sects. 277—283, relate to the Isle of ^lau. 
 
 In addition to the charter-party and bills of lading, which contain 
 the engagements of himself and his owners with the charterers of the 
 ship and the shippers of the cargo, the master is bound to carry with 
 liim the certificate of registry of the ship, on which appears the age, 
 build, and description of his ship, his own name as master, the names 
 and residences of his owners, and the proportions in which they are 
 interested in the ship {a} ; the account of the crew, in the forms 
 sanctioned by the Board of Trade (Z») ; the agreement with the 
 seamen — a legible copy of Avhicli he is required, at the commence- 
 ment of every voyage, to place on board, in such a manner as to be 
 accessible to the crew (c) ; the official log-book (d), in which, as we 
 have seen, an entry is to be made by him of certain events which occur 
 during the voyage ; the manifest, which should contain an accurate 
 statement, under his hand, of all the goods shipped, from whom 
 shipped, and by Avhom, also the names of the consignees, &c. {e). 
 
 [The master must also take on board no false or colourable papers, 
 that may subject the ship to capture or detention (/) ; and he must 
 procure and keep on board all the papers and documents required for 
 the manifestation and protection of the ship and cargo by the law of 
 the countries, from and to which the ship is bound, and by the law of 
 nations in general, and treaties between particular states (g). The] 
 
 («) 17 & 18 Vict. c. 104, ss. 44r— 5-1. 
 _ (b) Sects. 271—276. See the forms sanc- 
 tioned by the Board of Trade in tlie Appen- 
 dix. The master of every foreign-going 
 ship nmst report to the nearest mercantile 
 marine officer any change which may have 
 taken place in his crew before his iinal 
 departure from the U. K. 17 & 18 Vict. 
 c. 101, s. 158. 
 
 (c) Sects. 119, 16fi. See 36 & 37 Vict. 
 c. 85, s. 7. 
 
 (d) Sects. 280, 281. 
 
 (e) 39 & 40 Vict. c. 36, s. Ill, ante, 289. 
 In addition to the above, tlie master should 
 carry with liim a bill of health when re- 
 quired by the country to wliich the ship 
 is about to sail (see Leri/ v. Coster/on, 4 
 Camp. 388). And during maritime war, 
 the passport, sea brief, sea letter or pass, 
 which is a document granted by the supreme 
 authority of the nation declaring that the 
 ship sails under the authority of such 
 
 nation and is with the flag the principal 
 proof of neutralitv. The Success, 1 Dods. 
 132; the Trow Elizabeth, 5 C. Rob. 4; 
 J'er/etantia, 1 C. Rob. 1 ; the l^reede 
 ShoUys, 5 C. Rob. 5. 
 
 if) [ttuidon, chap. 5, art. 33; MoUoy, 
 book 2, chap. 2, sect. 9.] Hobbs v. 
 Hemming, 34 L. J. C. P. 117. \^Horneyer 
 V. Lusltinrjtun, and Osicdl v. Tir/ne, 15 
 East, 4G ; ibid. 70, as to the effect of 
 carrying stinmlated papers on a policy of 
 insurance not containing permission so to 
 do.] By the M. S. Act, 1854, 17 & 18 Vict. 
 c. 104, s. 103, it is provided tliat ships 
 unduly using the British flag, and assuming 
 the national character, may be brought by 
 naval officers and officers of customs before 
 a Couit of Admiralty, and confiscated to 
 Her Majesty. 
 
 {g) As to the victualling bill, clearance 
 label, transii'e or pass rccpiired by the 
 Customs Act, see ante, 289, 291, 294. As
 
 2. THE COMMENCEMENT OF THE VOYACE. 297 
 
 [rule of the Frencli orcliiiauce on this subject is, that the master must Chap. 5. 
 liave on board the charter-party and other documents relating to the 
 proof of his lading (A). Valin, in his Commentary on the Ordinance^ 
 saysj that this article relates chiefly to a time of war^ and that if a 
 ship should be condemned as good prize on account of the master's 
 failure in this respect^ he must answer for the event. I have confined 
 the rule in the manner above expressed, because it Avould be unjust to 
 charge the master or owners for some cases of omission, upon which 
 ships were condemned in France during the late Avars, although the 
 terms of the condemnation were such as to discharge the insurers 
 from their responsibility, according to the established rule o£ the law 
 of nations, which holds the sentence of a foreign court to be con- 
 clusive of the fact upon which it is founded ; and to which rule the 
 courts of justice in this country adhered with the dignity belonging 
 to regular and permanent establishments.] 
 
 As to the master, when superseded during a voyage, delivering up 
 the documents relating to the navigation of the ship to his successor, 
 see ]\L S. Act, 1854, sect. 259. As to delivering up documents on 
 the arrival of the ship at a port abroad to British consular officers, 
 &c., see sect. 259. 
 
 The master must carry no colours worn, or resembling those worn, 
 by Her Majesty's ships, nor any distinctive national colours except the 
 Union Jack with a white border, without warrant from Her Majesty, 
 or the Admiralty ; and if he wears on board his ship the Union Jack, 
 or colours usually worn bv the Queen^s ships, he is liable to a penalty 
 of 500/. (i). 
 
 2. Of the Commencement of the Voyage. 
 
 [Where, by the terms of a charter-party, a number of days is 
 appointed for the lading of the cargo, the master must not sail before 
 the expiration of the time ; and if a further period is allowed, by a 
 clause of demurrage, he must wait that period also, if required to 
 do so. 
 
 All things being prepared for the commencement of the voyage, 
 the master must forthwith obtain the necessary clearances {k), or per- 
 mission to sail, from the officers of the customs, or others appointed] 
 
 to the master being compelled to produce (*') Sect. 105. And see the Minerca, 3 
 
 certain documents to certain officers, sec Eob. 3-i; i?. v. J/i7/er, 1 Hagg. 197 j i?. v. 
 
 sect. 13 of M. S. Act, 1854; and see the Benson, 3 Hagg. 96. 
 
 provisions in the Customs Act, ante, 287 Qc) 39 & 40 Vict. c. 36, ante, 287 et seq. 
 
 et seq. As to the master, before leaving dock, re- 
 
 (h) Liv. 3, tit. 1, Charte-partie, art. 10, cording in the official log book the ship's 
 
 and Valin thereon. See also I'othier, Charte* draught of water, see 34 & 35 Vict. c. 110, 
 
 partie, num. 31. s. 5.
 
 208 
 
 DUTIES OF MASTER AND OWNEES. 
 
 Part IV. 
 
 Sailing with 
 convoy. 
 
 [for the discharge of vessels^ and pay (a) the necessary port and other 
 charges for that purpose [b).'] 
 
 Having complied with the regulations referred to^ ante, pp. 287 — 
 296 (the observance of which^ as well as of others too minute to be 
 mentioned here, is enforced by heavy penalties), [the master must 
 commence his voyage -without delay, as soon as the Aveather is 
 favourable (c) ; but he must on no account sail out during tempes- 
 tuous weather {d). By most of the ancient marine ordinances {e) 
 the master is required before he hoists sail to consult his mate, pilot, 
 and others of the crew, as to the wind and weather (/) ; but I appre- 
 hend such consultation is not required by the law of England, 
 according to which the entire management of the ship is entrusted 
 to the master. 
 
 If there has been an undertaking or warranty to sail with con-] 
 
 (a) [Guidon, cliap. 5, art. 33. Molloy, 
 book 2, chap. 2, sect. 9.] Mayor of Loudon 
 V. Hunt, 3 Lev. 37. Vinkerstoiie v. Ebden, 
 1 Salk, 248. As to the power of distress 
 for light dues, see sect. 401. 
 
 {b) By 30 & 31 Vict. c. 15, s. 4, "after the 
 commencement of this Act no exemption 
 from dues shall he allowed in the United 
 Kingdom on account of any one or more of 
 the following reasons; that is to say, 
 
 (1.) On account of any ship being regis- 
 tered at or belonging to any par- 
 ticular country, port, or place, or 
 trading between any particular 
 ports or places. 
 (2.) On account of any ship or goods 
 being the proiJci'ty of, or being 
 consigned by or to any particular 
 person or body corporate. 
 (3.) On account of any goods being 
 destined for sale in any particular 
 town, place, or market. 
 (4.) On account of any ship or goods 
 being sent to or from, or anchor- 
 ing or mooring at, or being laden 
 or unladen at any particular place 
 in any port, or in the neighbour- 
 hood of any port, except where a 
 ship is going to or from, or 
 anchoring or mooring at, or being 
 laden or unladen at such place 
 derives from the expenditure of 
 the class of dues in question no 
 benefit, or less benetit than ships 
 going to or from, or anchoring or 
 mooring at, or being laden or 
 unladen at another place iu the 
 same port. 
 (5.) On account of any goods being the 
 product of or being destined for 
 use at any particular manufactory, 
 place, or district, or any parti- 
 cular class of mauufactoi-ies. Pro- 
 
 vided that nothing in this Act 
 contained shall afl'ect any exemp- 
 tion from dues which has been 
 granted by an Act of parliament 
 to the owner or occupier of some 
 particular cpiay, manufactory, or 
 place as compensation for obstruc- 
 tion to his water frontage or access 
 to his premises, or other injury 
 caused to him by the works 
 authorized by such Act." 
 By sect. 3, the word "dues" shall in- 
 clude all tolls, rates, taxes, duties, and 
 imposts levied on ships or on goods carried 
 in ships, except any duties levied by the 
 Commissioners of Customs for the use of 
 Her Majestv. 
 
 {(■) Aiife,^ Chap. 1 of this Part. Ordin. 
 of Kolterdam, 2 Magens, ii. 102, art. 128. 
 The Ordinance of the Hanse Towns allows 
 two or three days. 
 
 (d) Molloy, book 2, chap. 2, sect. 4. 
 Koccus, not. 56. 
 
 (e) See French Ordin. art. 15, and 
 "Jugemeus d'Oleron," cited by Valin in his 
 Commentaries on it : " The master shouhl 
 ask counsel at his fellowes in making of sail ; 
 and gif some of them sayis that the weddar 
 is gude, and some sayis the contraire, the 
 master should accord with the maist part ; 
 and gif he does otherwise, and ocht cum to 
 the ship but gude, the master should pay 
 the skaith gif he has guhairwith." Balfour, 
 1 Bell's Commentaries, 554. 
 
 (/) [Wcllwood, tit. 8, p. 26. Ordin. of 
 Antwerp, 2 Magens, p. 17, art. 11. Emeri- 
 gon, torn. 1, p. 376. The author also 
 observes, that although the master is bound 
 on this and other occasions to ask the 
 advice of his crew, yet he is not bound to 
 submit blindly to it if it is batl, or if under 
 the circumstances it appears to be bad.]
 
 2. THE COMMENCEMENT OF THE VOYAGE. 299 
 
 [voy {(/), the vessel must repair to the place o£ rendezvous for that Chap. 5. 
 
 purpose, and the master must put himself under the protection and 
 
 control of the ships of Avar appointed under the authority of the 
 government for the guard of merchant vessels bound to the place of 
 his destination. A warranty that the vessel shall sail with convoy is 
 very common in a policy of insurance; and in that case^ if it be not 
 complied with, the insurance becomes absolutely void, and the 
 insurers are not answerable for a loss happening by tempest or other 
 accident Avholly independent of the subject of the warranty, for 
 which they would otherwise be liable, nor in many cases bound to 
 return the premium ; but if the warranty be made by the master or 
 owner to the merchant, and not complied with, the master or owner 
 may be responsible for a loss happening by tempest or other accident, 
 for which otherwise the master or owner would not be liable, and, 
 even if the ship arrive safe, may be bound to compensate the mer- 
 chant for the loss of the advantage of return o£ premium (h). The 
 merchant having trusted to this warranty of the master or owner, and 
 in confidence of its performance made a similar Avarranty in his con- 
 tract Avith the insurers, and having lost the benefit of his insurance 
 or of a return of premium by the breach of the Avarrauty on the part 
 of the master and OAvners, has a right to receiA-e from them whatever 
 he has lost by their misconduct. This Avarranty has been so fully and 
 ably treated by Mr. Park (i) , in liis valuable book on insurance, that 
 I should forbear to enter upon it here, did not a reference to the 
 several decided points and authorities on the subject appear abso- 
 lutely necessary in this place. 
 
 The convoy must be a ship or ships of Avar appointed under the 
 authority of the government ; that is, immediately by the govern- 
 ment, or by the commander-in-chief on a particular station. The 
 protection of a ship of Avar, accidentally bound on the same voyage, 
 although discharging the office of a convoy, is not a convoy within 
 the meaning of this Avarranty (k). 
 
 But this warranty to sail or depart with convoy does not mean 
 that the vessel shall depart with convoy immediately from the lading 
 port, but only from the place of rendezvous appointed for vessels 
 bound from that port. From many ports, and among others from 
 the port of London, no convoy ever sails. It has therefore been held 
 sufficient for a vessel bound from London to sail with convoy from 
 the DoAvns (/) ; and even from Spithead, when there was no convoy 
 appointed at the Downs {m). It has also been held, that a vessel is 
 not bound to put herself, between the loading port and place of ren-] 
 
 (ff) The cases relating to convoy will be the same time as the first edition of this 
 
 found at the end of this section. book.] 
 
 (A) Sanderson and others v. Busher, 4: (_k) Hibhertv.Pigou.\V-a.v^o\\ln%w:!Mcc, 
 
 Campb. 54, in note. Chap. 18;] Christian \. Ditchell, 2 VQ-Ak^i 
 
 (i) [Park on Insurance, Chap. 18. The 144. 
 
 same subject is also very fully discussed in (/) Lethulier's case, 2 Salk. 443. 
 
 Mr. Serjeant Marshall's excellent treatise (;») Gordon v. Morley, 2 Stra. 1265. 
 on the Law of Insurance, published about
 
 300 DUTIES OF PIASTER AND OWXEES. 
 
 Part IV. [dezvous, under the protsction of a coiiA^oy intended for ships o;i other 
 destinations {a). 
 
 Neither does it require the vessel to sail with convoy bound to 
 the precise place of her destination ; but if the vessel sail -with the 
 only convoy appointed for vessels going to the place of her destina- 
 tion, it is sufiicient. Thus, where a policy had been effected on goods 
 on board a ship called the Little Betsey, on a voyage at and from 
 London to Saint Sebastian, in Spain, warranted to depart with 
 convoy for the voyage, and at the trial of an action brought against 
 the underwriters it appeared that no convoy was appointed directly 
 to Saint Sebastian, but that the Little Betsey sailed under convoy of 
 a squadron of frigates, the commander of which had orders from the 
 Admiralty to take with him the IVeazIe and another frigate, and 
 proceed to Gibraltar, and to take Avith him such ships as should be 
 at Spithcad bound to Bilboa (wliicli is very near and in the course to 
 Saint Sebastian), and to detach tlie Weazle with the latter, Avith 
 orders to see them safe to Bilboa ; and on the voyage the commodore 
 made a signal for the Weazle to part company, and take with her 
 such ships as Avere bound to BillDoa and Saint Sebastian ; in obe- 
 dience to Avhich the lVea~Ie ])arted company, and took with her the 
 Little Betsey and other ships bound for Bilboa and Saint Sebastian, 
 but soon after parted Avitli them in chase of a strange ship, and did 
 not afterwards join them, — a jury of merchants, to Avhom Chief 
 Justice Eyre left the question, determined this to be a sailing Avith 
 convoy according to the meaning of the Avarranty, and the Court of 
 Common Pleas afterAvards approved of the verdict {b) . 
 
 In the case just quoted, the convoy under Avhich the A'cssel sailed 
 Avas in effect the convoy for the Avhole voyage, althoiigh not intended 
 actually for Saint Sebastian. It sometimes happens that the force first 
 appointed is to accompany the ships only for a part of their voyage, 
 and to be succeeded by anotlier; at other times a small force is 
 detached from the main body to bring them up to a particular point ; 
 if a vessel sail under the protection of the force thus appointed (c) or 
 detached [d), the Avarranty is satisfied. 
 
 But this Avarranty requires not only that the vessel shall com- 
 mence the voyage under the protection of the convoy, but also that 
 she shall continue during its course under the same protection {e), 
 unless prevented fi-om so doing by tempest or other unavoidable 
 accident, in Avhich cases the master and owners Avill be excused 
 if the master does all that is in his poAA'cr to keep the benefit of the 
 convoy (/), 
 
 Neither is it sufficient for the master to sail in company Avith the 
 ships of Avar appointed as the couA^oy, but he must before the 
 departure obtain, or at least use all due diligence to obtain, the sail-] 
 
 (a) Wanciclc v. Scolt, i Cami)b. 62. Chap. 8, sect, i. Aadley v. Buff, 2 Bos. &, 
 
 lb) irUffuino V. Benckl-e, 2 Heu. Black. Pull. 111. 
 551. (e) Lilly v. Ewer, Doug. 72. 
 
 (c) Smith v.Meadshai:\ Park, Cliap. 18. (/) Jeffery v. Legendra, Cartli. 21G; 
 De Garaii v. Clagget, ibid. 3 Lev. 3-JO. Mead v. Dawson, 4 M, & M. 
 
 (d) Manning v. Gist, Marshall, book 1, 70G.
 
 2. THE COMMENCEMENT OF THE VOYAGE. 301 
 
 [ing instructions and orders delivered out by the commander of the Chap. 5. 
 
 convoy to the master of the trading vessels that are to sail under 
 
 his protection. The necessity of obtaining such orders, if possible, is 
 fully established by the two cases of Webb v. Tltompson (g) and 
 Anderson v. Pitcher, in the Court of Common Pleas {h) ; in the last 
 of which Lord Eldon observes : " It being once decided that a 
 convoy within the terms o£ the policy means a convoy appointed by 
 government, it seems to follow of necessity that the ship must depart 
 with sailing instructions, if by the due diligence of the master they 
 can be obtained. The value of a convoy appointed by government in 
 a great measure arises from taking the ships under control as well as 
 under protection. But that control does not commence until sailing 
 instructions have been obtained; nor can it be enforced otherwise 
 than by their means. Indeed, the reason of that rule, which requires 
 that the convoy should be appointed by government, shows the 
 n.ecessity of having sailing instructions ; since without them the ship 
 does not stand in that relation, or under those circumstances, in 
 which she can take the full benefit of the government convoy. If 
 the fleet be dispersed by a storm, how is she to learn the place ot 
 rendezvous ? If it be attacked by the enemy, how is she to obey 
 signals ? In short, what communication can the protected have with 
 the protecting force. It has been contended, that if she be under the 
 protection of the guns it is sufficient. But will it be contended that, 
 provided she be under the protection of the guns at her departure, 
 though sailing instructions be never obtained during the voyage, or 
 not until the last clay of the voyage, the warranty is complied with? 
 Either sailing instructions arc not necessary, or if they be necessary, 
 they must be so at some given period, and can only be dispensed 
 with in some particular cases. Then can any other period be 
 assigned but the beginning of the voyage ? '^ 
 
 Each of these two cases arose from the loss of the same vessel, the 
 Golden GrovCy which had been insured at and from London to the 
 West Indies, with leave to go to the place of rendezvous to join 
 convoy, and warranted to sail from thence with convoy for the voyage. 
 And in the last of them, in which the facts are most fully stated, it 
 appeared that the ship arrived at Spithead about nine o^clock in the 
 morning of the 15th of November, 1795 ; that she came round under 
 the care of the first mate, the captain himself being on shore at 
 Portsmouth; that on the preceding day (the 14th), sailing instruc- 
 tions were delivered at Portsmouth to all such ships as applied 
 regularly for them ; and that the captain of the Golden Grove, 
 previous to her arrival, made inquiry concerning sailing instructions, 
 but found that they could not be obtained until the ship was actually 
 in sight; — that on the 15th of November, by dajdight. Admiral Sir 
 H. C. Christian, the commander of the convoy, got under weigh, but 
 had not entirely quitted the roadstead until about /o^/r o'clock in the 
 evening, and when he got under sail, he left the Trident frigate to] 
 
 (a) Well V. Thompson, 1 Bos. & Pull. {h) Anderson v. Pitchei' and Wife, 3 
 
 5. Bos. & Pull. 164,
 
 302 DUTIES or ]\rASTER AND OWNERS. 
 
 Part IV. [bring up siicli vessels as did not weigh anchor with him ; — that about 
 one o'clock of the same day, the captain of the Golden Grove repaired 
 on board, and got under weigh, at which time the Trident had also 
 got under Aveigh ; and both the admiral's ship and the Trident had 
 then proceeded so far that it was clear the Golden Grove could not 
 overtake the former soon enough for the captain to go on board that 
 night, and it was even doubtful whether he could overtake the latter; — 
 that on the next day between ten and twelve o'clock in the forenoon, 
 the captain of the Golden Grove, being only a quarter of a mile from 
 the admu'al's ship, went on board her, and obtained sailing instruc- 
 tions ; — that soon after the Golden Grove was lost, having been from 
 the time of her departure to that of the loss under the protection of 
 the convoy. Upon this state of facts, it was held that the warranty 
 was not complied with; for either the ship had not arrived time 
 enough to obtain sailing instructions, or if she had arrived time 
 enough, her captain had not used the necessary endeavours to obtain 
 them before she sailed. 
 
 If the ship do not quit her moorings until a few hours after the 
 convoy, and in consequence of the occurrence of a calm and heavy 
 sea is prevented from joining the convoy, it will not be an excuse 
 for the master to show that he made every practicable exertion to 
 come up with the convoy, and would have done so without difficulty 
 if the wind had continued as it was at the time when he left his 
 moorings [a). 
 
 On the other hand, if the master do all in his power to obtain sailing 
 instructions, but is prevented from obtaining them by the badness of 
 the weather [b], or if they are refused by the commander of the 
 convoy (c), the warranty is complied with. 
 
 So where, by the terms of a policy of insurance on a ship at and 
 from Portneuf to London, a part of the premium Avas to be returned, 
 if the ship sailed «'ith convoy on or before the 31st of October; and 
 it appeared that vessels sailing from Portneuf must clear at Quebec, 
 and that the ship arrived at Quebec on the 28th of October, and 
 obtained her clearances on the 29th, but could not procure a pilot to 
 carry her down the river St. Lawrence till the SOth, on which day 
 she joined the convoy some leagues below Qviebec, but within the 
 limits of that port, and cleared the port with the convoy on the 31st; 
 it Avas held that the insurers were entitled to a return of premium, 
 although the convoy had left Quebec on the 28th, having laid to for 
 vessels that had not been able to join ; the master, who had gone 
 from Portneuf to Quebec by land, had received his sailing instruc- 
 tions on the 27th of the month {d) . And Avhere the master, in con- 
 sequence of waiting for particular goods, did not leaA'C his mooring 
 until after the convoy, and Avas not able to join, having done all he 
 could for that purpose, he was not held liable to an action at the suit 
 of the owner of those goods (e) .] 
 
 (rt) Sanderson v. Btisher, 4 Campb. 54, (c) \^Veedon\.Wihnot, by Cb. J. Lee at 
 
 in note. Guildhall ; Park, chap. 18, p. 444, notis.'] 
 
 (i) IJlctoria v. Cleve, 2 Stra. 1250. The {d) liidsdale v. Shedde.i, 4 Campb. 107. 
 
 cause was tried before Cli. J. Lee, at Guild- {e) Macjelhaens v. Bwher, 4 Campb. 54. 
 
 baU.J
 
 2. THE COMMENCEMENT OP THE VOYAGE. 303 
 
 [The necessity of sailing under convoy does not at all times depend Chap. 5. 
 
 merely upon a special undertaking or warranty for that purpose : 
 
 during war it has been thought expedient by the legislature of 
 different states to compel merchant vessels^ in many cases, to place 
 themselves under this protection as a measure of public policy, to 
 prevent the enemy from enriching himself by their capture (/). 
 This was done by the legislature of this country during the late 
 wars (g) .] _ _ 
 
 By 27 & 28 Vict. c. 25, s. 46, " if the master or other person having 
 the command of any ship of any of H. M. subjects, under the convoy 
 of any of H. M. ships of war, wilfully disobeys any lawful signal, 
 instruction, or command of the commander of the convoy, or, without 
 leave, deserts the convoy, he shall be liable to be proceeded against in 
 the High Court of Admiralty at the suit of H. M. in Her Office of 
 Admiralty, and upon conviction to be fined, in the discretion of the 
 court, any sum not exceeding 500/., and to suff'er imprisonment for 
 such time, not exceeding one year, as the court may adjudge." 
 
 By 29 & 30 Vict. c. 109, s. 31, " every master or other officer in 
 command of any merchant or other vessel under the convoy of any 
 ship of H. M. shall obey the commanding officer thereof in all matters 
 relating to the navigation or security of the convoy, and shall take such 
 precautions for avoiding the enemy as may be directed by such com- 
 manding officer; and if he shall fail to obey such directions, such com- 
 manding officer may compel obedience by force of arms, without being 
 liable for any loss of life or property that may result from his using 
 such force." 
 
 The decisions upon undertakings to sail with convoy assisted in the 
 construction of former Acts of Parliament as to sailing with convoy (A); 
 therefore some of those decisions are here noticed. 
 
 [The ship Maximilian, bound from London to Quebec, arrived at 
 Portsmouth a few hours after the Quebec convoy had sailed from 
 thence for Falmouth, under orders to lie to, and call for ships off that 
 port. The ship remained at Portsmouth for sixteen days, and then 
 sailed with a Mediterranean convoy, that would protect her as fai* as 
 the Azores, and was never heard of afterwards. In an action on a 
 policy of insurance effected by the owner, who was privy to this sail- 
 ing, it became a question whether this was a sailing under convoy 
 within the meaning of the Act (43 Geo. 3, c. 57); and the court held 
 that it was not [i] . It was contended, that the Mediterranean convoy] 
 
 (/) [A verj' full account of the regula- oi'ders, and not separate fron^ him. The 
 
 tions made at different times in France on Ordinance of Hamburgh, of the year 1731, 
 
 the subject of convoy is given in Valin's tit. 4, art. 4, requires the master to receive 
 
 Commentary on the French Ordinance, a letter of instructions from the coni- 
 
 tom. 1, p. 691, by which it appears that at mander of the convoy. 2 Magens, 214.] 
 particular periods, merchant ships have ((/) 38 Geo. 3, c. 7G, and 43 Geo. 3, 
 
 been absolutely forbidden to sail without c. 57, now repealed. See Wainhouse v. 
 
 convoy, under very severe penalties on the Coivie, 4 Taunt. 178. This, it must be borne 
 
 master and owners; and that, whenever in mind, is taken from the 5tli ed. of this 
 
 convoy was required, the master was to work published in 1827. 
 bring his ship to the rendezvous, and (h) By Lawrence, J., 1 Taunt. 253. 
 
 receive sailing instructions (ordres 2}onr la (/) Cohen v. Jlincklei/, 1 Taunt. 249. 
 
 route) from the conimandant, and obey his
 
 304] DUTIES OF 3r ASTER AND OWNERS . 
 
 Part IV. [was a sufficient convoy to satisfy the Act ; or, if it were not, then that 
 
 the ship might be presumed to have sailed in pursuit of the Quebec 
 
 convoy, Avhicli it was argued she might lawfully do. But the Chief 
 Justice {(i) said, "^ On the whole purview of the Act it appears that the 
 sailing with convoy, which it requires, must be a sailing with convoy 
 for the voyage, or for so long a part thereof as convoy is appointed 
 to go. The master sailed from Portsmouth to Falmouth without a 
 convoy bound for Quebec {b) . It is argued that he may sail from port 
 to port without convoy ; but the Act does not say that, unless the ship 
 was bound from port to port : the exception in the sixth section is 
 for A-essels bound from port to port. The next argument used is, that 
 the captain may legally endeavour to overtake the convoy ; but if he 
 may try at all, why may he not continue to try till the convoy is 
 arrived within the last ten miles, or even the last mile of the voyage? 
 Such a construction would wholly defeat the purposes of the Act : 
 this, then, is a sailing contrary to the Act, and avoids the policy." 
 Heath, J., observed, there was no evidence of any sailing instruc- 
 tions having been given to the ship (c). Chambre, J., observed, 
 that though the Act was to many purposes penal, yet it Avas to certain 
 purposes a remedial Act, directed to a great object of public policy, 
 and the court could not do it away on account of the hardship of the 
 case. 
 
 The ship Providence being about to sail from London to Madeira, 
 and being represented to be armed with six carriage guns, and manned 
 with twelve men and boys, a license Avas obtained for her sailing 
 without convoy, provided she should be armed and manned in the 
 manner before mentioned. She had her complement on board in the 
 port of London, but five men Avere discharged; and on the 5th of 
 October the ship cleared out for Madeira; aud on the 11th of 
 February she sailed from the Downs for Portsmouth, Avliere, if any- 
 Avhere, slie would have fomid and joined convoy for Madeira. On 
 the 13th of February she was captured off Shorehara, having only 
 seven men on board. No bond ivas given upon the slap's clearing out. 
 At that time, the owners had not determined Avhether or no they 
 should avail themselves of their license : if upon the ship's arrival at 
 Portsmouth a couaoy was foimd ready to sail, it Avas intended that 
 the ship should be placed under its protection : if such convoy should 
 not be found, it was intended t3 complete the crew to the number 
 required by tlie license, and to sail under the license. The legality 
 of this transaction was questioned in an action upon a policy of 
 insurance ; and the court held it to be illegal. The license could not 
 legalize the ship's departure and proceedings, because its condition 
 was not complied with : and although the ship might lawfully have 
 sailed to Portsmouth, as the place of rendezvous, if it had been 
 intended that she should sail Avith convoy, yet in that case a bond] 
 
 (a) Sir James Mansfield. been sufficient. See IfEguino v. Beioicke, 
 
 Ip) [And also without a convoy appointed ante, p. 300.] 
 for the Quebec ships, which might hare {c) Hee Webb v. Thomson, and Andersony. 
 
 Flicher and Wife, ante, p. 301.
 
 2. ON r03BrEXCEMENT OF VOYAOE. - 305 
 
 [was necessary, and none had been given, so that in effect this was a Chap. 5. 
 departure without license, and without convoy {d) . 
 
 The ship Ocean was chartered for a voyage from Hull to Palermo, 
 Messina, or Malta, and Avas destined accordingly. A license was 
 obtained for her sailing without convoy from Hull to Gibraltar, in 
 which she was described as bound on a voyage to Gibraltar ; she did 
 not in fact take in any goods for Gibraltar, but she obtained clear- 
 ances for Gibraltar, Malta, and Messina. Written instructions were 
 given to the master to proceed to S[nthead, and there to make 
 inquiries about convoy, and if he should find a convoy appointed for 
 the Mediterranean on the point of sailing, to take advantage of it ; 
 but not to receive instructions until it should be actually under weigh, 
 that he might be at liberty to pursue his voyage singly, should the 
 convoy not sail the moment the wind should be fair : in that case he 
 was to make his way direct to Palermo, without touching either at 
 Gibraltar or any other port. If, however, in passing Gibraltar, he 
 should be ordered into the Bay by any of the cruisers, in order to join 
 convoy bound upwards, he must comply; but not otherwise, as his 
 great object must be to get to Palermo as soon as possible. The 
 ship sailed without convoy, and arrived in the Gut of Gibraltar, and 
 the master was obliged by stress of weather to put into Gibraltar, 
 where he remained ten days, and inquired for convoy upwards; but 
 finding no convoy, and there being no person authorized to appoint 
 convoys or to grant licenses, he sailed again for Palermo, and Avas 
 captured on the way thither. The course of navigation to Palermo 
 and Gibraltar is the same as far as the Gut of Gibraltar. Convoys 
 for Sicily, and other places in the Mediterranean frequently sailed 
 from England. In an action on a policy of insurance the legality o£ 
 this voyage also was questioned ; and it was contended that the 
 voyage Avas legal, because there was a license to proceed to Gibraltar 
 without convoy, and that the further prosecution of the voyage from 
 that place was within the exceptions of that statute; but the court 
 held the voyage to be illegal, the ship not having in fact sailed for 
 Gibraltar, as her license imported (e) . It is obvious that the parties 
 interested in this voyage, and also in that of the ship Providence, 
 were endeavouring to evade the law, and they met with the fate that 
 usually awaits attempts of that nature ; they found the law too strong 
 for them. 
 
 The Triumph sailed Avith convoy from Cork, in 1811, returned to 
 that port with the convoy, sailed with it again, and putting back in 
 distress the convoy proceeded without her. Being repaired, she sailed 
 ultimately on the voyage without couA^oy, or having obtained a license 
 to sail without. Under these circumstances the ship was held to have 
 literallj^ complied with the provisions of the statute, and Avhen leaving 
 the port of Cork, for the third time, to have lawfully sailed on her] 
 
 (d) Hinclcleyx. 7FaWo», 3 Taunt. 131. Wainhouse v. Cowie, 4 Taunt. 178; and 
 
 U') Ingram v. Agiieio, 15 East, 517. See Darhij v. Newton, 6 Taunt. 541. 
 
 X
 
 306 DUTIES OF MASTET? AND OWNET^S. 
 
 Part IV. [voyage, ■without waiting for tlic next convoy from that port, or joining 
 ~ convoy from any other port {a) . 
 
 The ship Sir Sydney Smith, hound from London to Berhice, sailed 
 "with a fleet for the "West Indies, under convoy, and arrived there^vith 
 off Madeira, on Saturday, tlie 17th of October. Tlie master was to 
 land goods at jMadeira, and take some wine on hoard there. He 
 began to land the goods as soon as he arrived ; but not being allowed 
 to work on the Sunday, he had not got the wine on board till the 
 Monday at noon. The convoying ship with the greatest part of the 
 fleet, sailed away on the Siuulay, and was too far off to be OA^er- 
 taken. Some other sliips were left behind at Madeira, and all agreed 
 to sail together for mutual protection. The ;S'/;* Sydney Sniii/i, Iioav- 
 ever, was afterwards separated from them and captured. An owner 
 of some goods insured was on board during the voyage, and after- 
 wards brought an action on his policy. The cause was tried before 
 Lord Ellenborough, wlio expressed himself to be clearly of opinion 
 that the underwriters were discharged on the ground of deviation, 
 but said he was inclined to think this was not a wilful desertion of 
 the convoy within the meaning of the Act, as the master appeared to 
 have acted bond fide, and not to have been aware of the precise time 
 when the convoy sailed from Madeira {b) . 
 
 But a merchant who, having covenanted to furnish a full cargo in 
 the West Indies to a ship on her voyage from Liverpool to the West 
 Indies and back, furnished a partial cargo only, was held liable to an 
 action on this covenant, although the ship sailed from Liverpool 
 without convoy, and without being manned in the manner specified 
 in a license that had been obtained for sailing without convoy, it not 
 appearing that at the time of the contract of affreightment the parties 
 contemplated a disobedience of the Act of Parliament (c) .] 
 
 3. Dnrinfi Course of the Voyage. 
 
 Master should [Having commenced his voyage, the master must proceed to the 
 
 '^'^rrf ^'^- ' P^^^^ °^ destination without delay, and without stopping at any inter- 
 
 aeviation.°^ mediate port, or deviating {d) from the straight and shortest course, 
 
 unless such stopping or deviation be necessary to repair the ship from 
 
 the effects of accidents or tempest, or to avoid enemies or pirates, by] 
 
 (a) Laing v. Glover, 5 Taunt. 49. question respecting which uo fixed rule 
 
 (J) TFi!7/?aw5 V. .S'App, 3 Ciimpb. 469. can be laid do\ra : per Tixdal, C. J. — 
 
 (<?) Wilson V. Foderingham, 1 JM. & S. FhUlips v. Irring, 8 Scott, N. R. 3; ante, 
 
 468. p. 187 ; see Co. of African Merchants v. 
 
 {d) Delay before or after the commence- British, S^'c, Co., L. E. 8 Ex. 154 ; San 
 
 ment of the A'oyage insured, or in seeking Homan, 41 L. J. Ad. 72, L. R. 5 P. C. 301, 
 
 for cargo at a foreign port, will not amount \\\\cyq there was a reasonable apprehension 
 
 to a deviation, unless it is under all the of capture, 
 
 circumstances of the case, unreasonable — a
 
 3. DUGTXn COFKSE OF THE VOYAGE. ' 307 
 
 [whom he has good reason to suspect that he shall be attacked if he Chap. 5. 
 
 proceeds m the ordinary track, and whom he has good reason to hope 
 
 that he may escape by delay or deviation (e) ; or nnless the ship sail 
 to the places resorted to in long voyages for a snpply of water or 
 provisions by common and established usage (/) .] 
 
 By the French ordinance {g) the master is expressly prohibited 
 from entering, without necessity, into any foreign port, and if driven 
 there by a tempest, or by pirates, he is enjoined to set sail again on 
 the first favourable opportunity; and by the Code de Commerce, '\i, 
 during the course of a voyage, the captain is compelled to enter a 
 port, he must, if a French port, go before the President of the 
 Tribunal of Commerce, or the " Juge de Paix," to declare his reasons 
 for so doing; in a foreign port, before the French consul. 
 
 [If the ship is captured in consequence of deviation, the merchant 
 is entitled to recover from the owner the prime cost of his goods, 
 with the shipping charges, but no more, without direct proof that the 
 goods, at the time of the loss, were enhanced in value beyond the 
 amount before mentioned, although the merchant may have effected 
 a policy of insurance thereon {h) .] 
 
 In the case of Davis v. Garrett (i), the plaintiff put on board the 
 defendant's barge lime to be conveyed from the Medway to London, 
 The master of the barge deviated, unnecessarily, from the usual 
 course, and during the deviation a tempest wetted the lime, and the 
 barge taking fire thereby, the whole was lost. It was contended for 
 the defendant, that the cause assigned for the loss of the lime was 
 too remote to entitle the plaintiff to sue — that it could not be averred 
 with certainty, that the deviation was even the remote cause of the 
 loss, for the barge might have encountered, and probably would have 
 encountered, the same storm if she had proceeded in a direct course; 
 but Lord Chief Justice Tindal, in delivering the judgment of the 
 Court of Common Pleas, said — " The objection taken is, that there 
 is no natural or necessary connexion between the wrong of the 
 master, in taking the barge out of its proper course, and the loss 
 itself. But if this argument were to prevail, the deviation of the 
 master, which is undoubtedly a ground of action against the owner, 
 would never, or only under very peculiar circumstances, entitle the 
 plaintiff to recover; for if a ship is captured in the course of devia- 
 tion, no one can be certain that she might not have been captured if 
 in her proper course. And yet, in Parker v, James [k], where the 
 ship was captured in the act of deviation, no such ground of defence 
 
 (e) Pule V. Ce/coimc7i, 9 C. B.('!<{.s.)4B0 ; Roccus de Assec, note 52. Park on Ins., 
 
 30 L. J. C. P.102; Diuwan v. Kosfer, 41 L. J. e. 17. 
 
 Ad. 57. L. E. 3 A. & E. 394; 4 P. C. 171. {g) Liv. 2, tit. 1, art. 24. 
 
 (/) Davis V. Garrett, 6Bmg. 716; Free- (h) Parker v. James, 4 Camph. 112. 
 
 man v. Taylor, 8 Bing. 120; Mount v. (i) 6 Bing. 710. See also Porter v. Isat 
 
 Larkins, 8 Biiiff. 100 ; M' Andrew v. Adams, 1 M. & W. 381. 
 
 1 IJ. N. C. 29 ; Palmer v. Marshall, 8 (k) 4 Campb. 112. 
 Biui;-. 317; M-dnrosv. mil, 8 Bmo;. 231;
 
 308 • PDTIES OF MASTER AND OWXEES. 
 
 Part IV. "vras even suggested. Or, again, if tlic ship strikes against a rock, or 
 perishes by storm, in the one course, no one can predicate that she 
 might not equally have struck upon another rock, or met "with the 
 same or another storm, if pursuing her right and ordinary voyage. 
 The same answer might be attempted to an action against a defen- 
 dant, who had by mistake forwarded a parcel by a wrong conveyance, 
 and a loss had thereby ensued ; and yet the defendant in that case 
 •would undoubtedly be liable. But we think the real answer to the 
 objection is, that no wrongdoer can be allowed to qualify or appor- 
 tion hir; own wrong ; and that as a loss has actually happened whilst his 
 wrongful act was in operation and force, and which is attributable to his 
 wrongful act, he cannot set up as an answer to the action the bare 
 possibility of a loss if his wrongful act had never been done. It 
 admits of a different construction, if he could shoAv, not only that the 
 same loss might have happened, but that it must have happened if the 
 act complained of had not been done.''^ 
 
 If a particular route be prescribed by charter-party, the master 
 must pursue it— if the ship be destined to several places, he should 
 sail to them in the order designated («), or which may be usual — 
 making such intermediate rests and stages only in the course of his 
 voyage as the ordinary convenience of his employers, and the nature 
 of the ship^s service, may require {b) . 
 
 If the ship be chartered for one of several ports, and to proceed to 
 any particular place '^ for orders/^ he must proceed thither and wait 
 there for such time as in the exercise of a prudent and honest dis- 
 cretion may appear to him reasonable, and should he not receive 
 orders within such reasonable time, he must select such one of the 
 mentioned ports of destination as may seem to him best (c) . Slight 
 deviations from the letter of the charter-party at the instance of the 
 charterer's agent, may not, as against the charterer, affect his 
 owner's rights upon it, but such deviations may not be to the extent 
 of substituting a difierent voyage or a different cargo for those stipu- 
 lated in the charter-party (rf), — unless indeed in an emergency the 
 agent be specially appointed to determine the course to be adopted 
 by him (e). 
 
 [If the ship be driven into a port out of the course of the voyage 
 by tempest, or the master sail thither for any of the before-mentioned 
 reasons, he must wait no longer than necessity requires, but sail 
 again without delay ; and for that purpose supply his ship with the 
 requisite necessaries or repair as expeditiously as he can.] 
 
 AVhile a vessel is detained at a port of necessity, it seems to be 
 no deviation to take in an additional cargo, if no additional delay or 
 risk is occasioned thereby. 
 
 {n) Max V. Eolerts, 12 East, 89. {d) Sickens v. Irvhiff, 7 C. B. (n.s.) 165 ; 
 
 (6) Beatson v. Haworth, 6 Term Rep. 29 L. J. C. P. 25. 
 
 531. Fratt v. A^hlai, 1 Ex. 257. Bar- (e) Pole v. Cetcoioich, 9 C. B. (x.s.) 430; 
 
 roioer v. Si</chi>ison,^L. E. 5 Q. B. 58 i. 30 L. J. C. P. 102. Duncan v. Kostei; 41 
 
 (c) ^/ei-e^/w^v. il/«a.9,25L.J. Q.B.275; L. J. Ad. 57; L. R. 3 A. & E.394; 4 P. C. 
 
 S. C. in error, ib. 358. 171.
 
 o. DUEING COUESE OF THE VOYAGE. 809 
 
 In an action on a policy of insurance on sliip and freight from Chap. 5. 
 
 Spain to London, with liberty to touch and stay at any port or place 
 
 -whatever, without being deemed a deviation, the ship was obliged to 
 put into Gibraltar for provisions, and, while she lay there, received 
 some chests of dollars on board on freight, which occasioned no 
 delay. It was objected, that as there was no liberty to trade, the 
 underwriters were discharged ; but the court held, that as there had 
 been no delay, nor any increase or alteration of the risk, the plaintiff 
 was entitled to recover (/). 
 
 So where a ship, insured from Stockholm to New York, with a 
 cargo of sheep, having touched at Elsineur for convoy, and to pay 
 the Sound dues, took in a fresh supply of provender for the sheep, 
 without thereby occasioning any delay, the court held that the under- 
 writers were not discharged {(j) . 
 
 It seems that a deviation reasonably necessary for the purpose of 
 saving human life is justifiable {h) . 
 
 [If the ship has the misfortune to meet with enemies or pirates. Resisting 
 the master must perform the part of a valiant man, and make the ^l^^'^^^^^ ^"^^ 
 best resistance which the comparative strength of his ship and crew 
 Avill allow [i) . 
 
 By the treatise called " The Guidon,^' it is declared, that if the 
 master, by connivance with robbers, or by his entreaties, obtain from 
 them any part of the cargo, by way of payment of his freight, he shall 
 restore such part to the merchant, receiving the freight due in 
 respect of it; and if the robbers pay him the freight of his ship, 
 he shall give an account of the money paid, and the money shall be 
 distributed by way of general average between the goods stolen and 
 the freight of the ship [k). I have already mentioned the provisions 
 of the English legislature on this subject (/).] 
 
 Should the ship in the course of the voyage become unseavvorthy, When ship 
 it is the master's duty to repair her if she be in a place where repairs seTwOTthy^^' 
 can be done, and if he neglect this duty, and an action be brought 
 against his owners by the owner of goods necessarily thrown over- 
 board on account of the ship's unseaworthiness, it is no defence that 
 she was seaworthy at the commencement of the voyage (;/?) . 
 
 (/) Ealne v. Bell, 9 East 195, oveiTiil= purpose of saving another ship or carfro 
 
 ing the Nisi Prius decisions of SlM v. (S. C). The True Blue, Ij.^.I V. Q. 2o4:. 
 
 Wardcll, 1 Esp. 610, and Sheriff v. Potts, (i) [Ordinance of the Hause Towns, arts. 
 
 5 Esp. 96. See also Pliillips on Ins. c. 12, 35,36, 37; Eoccus,not. 70; ante, Part III, 
 
 pp. 200, 201 ; and Mr. Justice Story's note Cliap. 5, sect. 4.] See Taijlor v. Curtis, 6 
 
 to the American edition of this work. Taunt. 608. 
 
 {g) Cormack v. Gladstone, 11 East, 317. (^O Guidon, Chap. 6, art. 2, p. 229. 
 
 See Laroche v. Oswln, 12 East, 131. (0 ^-i'lte. Part II, Chap. 5. 
 
 Qi) Scaramauffa V. Stamp, 48 L.J. C. V. (m) Worms v. Storey, 11 Ex. 427; 25 
 
 478; L. E. 4 C. P. D. 316; not so for the L. J. Ex. 1.
 
 ilO 
 
 DUTIES OF MASTER AND OWXEKS. 
 
 Part IV. 
 
 4. Of the Master's Duty as respects the Cargo in the course of the 
 
 Voyafje {a). 
 
 [If by reason of the damage clone to the ship, or througli Avaut of 
 necessary materials, she cannot be repaired at all, or not without 
 very great loss of time, the master is at liberty to procure another 
 ship to transport the cargo to the place of destination [b] ; but if his 
 own ship can be repaired, he is not bound to send the cargo by 
 another, but may detain it till the repairs are made, and even hypo- 
 thecate it for the expense of them ; that is, supposing it not to be of 
 a perishable nature ; if it be of such a nature, and there be not time 
 or opportunity to consult the merchant, he ought either to tranship 
 or sell it, according as the one or the other will be most beneficial to 
 the merchant {c) . So if the ship has been Avrecked, and the cargo 
 saved. And if on the high seas the ship be in imminent danger of 
 sinking, and another ship, apparently of sufficient ability, be passing 
 by, the master may remove the cargo into such ship ; and although 
 his own ship happen to outlive the storm, and the other perish with 
 the cargo, he will not be answerable for the loss. 
 
 The disposal, however, of the cargo by the master is a matter that 
 requires tlie utmost caution on his part. He should always bear it 
 in mind, that it is his duty to convey it to the jilace of destination. 
 This is the purpose for which he has been entrusted with it, and 
 this purpose he is bound to accomplish by every reasonable and] 
 
 (a) A duty is cast on tlie iiuxster in inaiiy 
 cases of acciilent ami cmei't;euey to act foi* 
 the safety of the cargo in such inanuer as 
 luay be best vinder the circumstances in 
 which it may be placed, and that, as a cor- 
 relative right, he is entitled to charge its 
 owner with the expenses projierly incurred 
 iu so doing. The cargo Ex Artjos, 42 L. J. 
 Ad. 56; L. R. 3 A. & £. 568; 5 P. C. 134. 
 — JPer Sir 21. Smith. 
 
 {b) [Laws of Oleron (art. 4), and Cleirac 
 thereon. French Ordin. liv. 3, tit. 3, Fret, 
 art. 11, and Vallu thereon. Mollny, book 2, 
 Chap. 4, sect. 5. Ordin. of Antwerp, 2 
 Magens, p. 14, art. 3. Ordin. of Kotterdam, 
 2 Magens, p. 104, arts. 147, 148. See the 
 judgment delivered by Lord Maksfielu in 
 Luke V. Lyde, 2 Uurr. 889.] A ship and 
 cargo were salved on the 2nd of October, 
 and arrested in the salvage suit on the 7tli 
 of October. The ship which was not 
 worth the dock dues, was abandoned to the 
 dock authorities on the 24th of October, 
 and the cargo, which had not been released, 
 was, after notice to the owners, sold on the 
 16tli of December : — Held, that the aban- 
 donment of the ship by the master was not 
 
 a repudiation by hiin of his contract to 
 carr^' the goods to the place of their desti- 
 nation ; that the owners of cargo by not 
 procui'ing its release waived their right to 
 have the cargo transhipped; and that there- 
 fore the owners of the ship were entitled to 
 pro rata freight which was all that was 
 asked for. The Sohloiiisfen, 36 L. J. Ad. 5; 
 L. E. 1 A. & E. 293, et per Dr. Lrsm>G- 
 TOX, by Kritisii law the following points 
 seem to nie settled : first, That upon the 
 vessel becoming disabled at an intermediate 
 port, the master is allowed a reasonable 
 time within which to reship or tranship, so 
 as to earn his freight; secondly, That the 
 ivliole freight is jiayable, if by default of the 
 owners of the cargo the master is pre- 
 vented from forwarding his cargo from the 
 intermediate port to its destination. The 
 cargo Ex Galam, 33 L. J. Ad. 97 ; 2 Moore, 
 P. C. C. (x.s.) 216; post, Chap. 9 of this 
 Part. 
 
 (c) [See the judsrment by Sir "W. Scott, 
 in the Gratifudine, 3 Rob. Eep. p. 240.] 
 Sec the notes by I'erkins to American 
 edition of "Abbott, by Story and Shcc," 
 and the cases there cited, ] p. 446, 447.
 
 4. AS TO CAEGO DUEING VOYAGE. 
 
 311 
 
 [practicable method. Every act that is not properly and strictly 
 in furtherance of this duty is an act for "which both he and his 
 owners may be made responsible ; and the law of England does not 
 recognise the authority of any tribunal^ or officer^ acting upon his 
 suggestion or at his instance, bnt will scrutinize their acts as much 
 as his own (f/),] 
 
 His authority extends to acts such as he, in the exercise of an 
 honest judgment, thinks the best for the interest of the owner of 
 both ship and goods ; but if, though acting bond fide, aad meaning 
 to execute the duties of his employment of master, he, by mistake, 
 sells goods which he ought not to have sold, he may be guilty 
 of a conversion for Avhich not only he, but his owners Avill be 
 responsible (e). 
 
 [The hypothecation of the cargo is allowed by the Marine Law,] 
 
 Chap. 5. 
 
 {d) [Sec Hiinter v. Frhisep, 10 East, 378, 
 j)ost, Chap. 8 of this Part. Tan Oincron v. 
 Dowick, 2 Caiiipb. 42. Joseph v. Knox, 3 
 Campb. 320. See ante, p. 6, and Reid v. 
 Darhy ; the Fanny and Eimira; Hai/maii 
 V. M'mlton ; aud Andrews v. Glover, there 
 cited.] Atkinson v. Stephens, 1 Ex. 567. 
 In cases of this kind, the master of a sliip 
 should, wlieu practicable to obtain an 
 answer \\ithiu a period not inconvenient 
 as respects tlie exigency of tlie circum- 
 stances, communicate witli the owners of 
 the cargo (see Gihhs v. Greii, 2 H. & X. 
 22; 20 L. J. Ex. 280; Cammell v. Sev:eU, 
 3 H. & X. 617; S. C. 5 H. & X. 728; 
 the Bonaparte, 3 W. Rob. 298; Wilkin- 
 son V. Wilson, 8 Moore, P. C. C. 459; 
 Acafos V. Burns, 47 L. J. Q. B., &c., 566 ; 
 L. 11. 3 Ex. D. 282; the Hamburgli, 
 Buranti/ v. Mart, 33 L. J. P. C. 116), or if 
 communication witli them be imjwssible, 
 with their agents. His duty to the sliip- 
 owner is to earn his freiglit. Unless they 
 are willing to pay it, and take the goods, 
 he should, on the advice given by them, 
 exercise his judgment, without submitting 
 it to their direction. If they decline the 
 responsibility of acting or advising in the 
 matter, he must use the discretion vested in 
 him by law as the agent of shipowner aud 
 merchant to. the best of his knowledge and 
 ability. If as agent for the shipowner, and 
 in discharge of his engagement with the 
 merchant, ho enters into a contract for the 
 carriage of the goods to their destination in 
 another ship, there seems no reason why he 
 should not, by jjrocuring bills of lading 
 making the goods deliverable to the con- 
 signees on payment of the original freight, 
 constitute the master of that ship his agent 
 to receive it, and to assert his hen upon the 
 goods for it. In thus acting as agent for 
 the shipowner to perform his contract with 
 
 the merchant, the freight payable by the 
 consignees will be subject to the same 
 deductions for advances, &c., as the freight 
 originally contracted for. Matthews v. 
 Gihhs, 30 L. J. Q. B. 55. In one case it 
 was held that a master having delegated his 
 discretion to an agent of the freighter re- 
 questing him "to act on behalf of his 
 owners to the best of his discretion and 
 ability," and the authority thus given by 
 him having been acted upon by incurring 
 expenses, and a prudent sale of the goods, 
 that he could not revoke the authority, and 
 that the merchants were not liable in au 
 action for wrongfully preventing him from 
 carrying the goods to their destination, and 
 earning freight. Blasco v. Fletcher, 14 
 C. B. (X.s.) 14; 32 L. J. C. P. 284. 
 
 (e) Ewhank v. Xutting, 7 C. B. 797. 
 There is a duty upon the master of a shin, 
 as representing the owners, to take active 
 measures to check aud arrest the injurious 
 consequences of damage done to the cargo 
 by perils, excepted in the bill of lading. 
 
 In an action by shipper against ship- 
 owner it appeared that beans were shipped 
 under a bill of lading, containing the usual 
 exception of perils of the sea (including 
 collision). The vessel sustained damage by 
 collision, and put into a port for repairs. 
 The beans having become wetted by 
 salt water, the shippers, through their 
 agent, offered to receive the cargo and pay 
 pro rata freight. The master refused to 
 deliver the cargo except upon receipt of the 
 whole freight, and proceeded with his 
 vessel to the port of discharge. Upon its 
 arrival it was found that tb.e damage to the 
 beans by the collision hud been materially 
 enhanced by their detention on board after 
 they had liecn saturated with salt water. 
 The increased damage would have been 
 avoided if the beans had been unshipped,
 
 312 DUTIES OP PIASTER Al^D OWNEES. 
 
 Part IV. [and by tlie law of England also : but it is allowed in those cases only 
 ■ in which it is made in furtherance of this purpose. The sale of a 
 
 part has been allowed : but it was alloAved in a case in which the 
 hypothecation of the whole would have been lawful, and because it 
 was considered as a matter equivalent to such hypothecation. Hypo- 
 thecation imports a pledge without immediate change of posses- 
 sion {a) ; it gives a right to the party Avho makes advances upon the 
 faith of it to have the possession, if his advances are not repaid at 
 the stipulated time, but it leaves to the proprietor of the things that 
 may be hypothecated the power of making such repayment, and 
 thereby freeing them from the obligation. It is, therefore (as hath 
 been before observed) {b), contrary to the nature of this proceeding, 
 and consequently contrary to the duty, and beyond the power, of the 
 master to engage that the lender shall at all events, have the goods 
 delivered at their place of destination to him or his agents, to be 
 there sold and disposed of by him or them, without reserving the 
 right of redemption to the merchant ; and such an engagement will 
 not be obligatory upon the merchant, but he will still have the right 
 to take his goods upon payment of the money for which they may 
 have been engaged (c) . 
 
 It is obAdous that this purpose — viz., the conveyance of the goods 
 to the place of destination — cannot possibly be effected by a sale of 
 the whole of them, and therefore, according to the principles before 
 mentioned, the master cannot, in his character of master, have 
 authority to make such a sale ; nor does the law superadd such 
 authority to his character {d) . What, then, is the master to do, if, 
 by any disaster happening in the course of his voyage, he is unable 
 to carry the goods to the place of destination, or to deliver them 
 there ? To this, as a general question, I apprehend no answer 
 can be given. Every case must depend upon its own peculiar 
 circumstances. The conduct proper to be adopted with respect to 
 perishable goods will be improper with respect to a cargo not 
 perishable (e) ; one thing may be fit to be done with fish oi- fruit, and] 
 
 dried, and re-sliipped at tlic port of refuge, ditoretn iranalt ; hypolliecam, cum tioii 
 
 the cost of which miglit have been charged iransit, nee possetssio ad creditorem. — Dig. 
 
 to the cargo as particular average -.—Held, 13, 7, 9, 2. 
 
 athrming the judgment of th^; Court of (/>) Anie, p. 104. 
 
 Queen's Bench, that assuming that the pre- (<•) Johnson v. G-reaves, 2 Taunt. 314. 
 
 cautions above-mentioned would not have {d) Tan Ouieron v. Dowick, 2 Cauipb. 
 
 unreasonably delayed the voyage, the de- 42. See Brockhank v. Anderson, 7 Scott's 
 
 fendant was liable for the additional damage X. R. 830, ante, p. 120. 
 
 to the plaintiff. Notara v. Henderson, 41 (e) In cases of necessity or calamity dur- 
 
 L. J. Q. 13. 158; L. R. 5 Q. B. 346; 7 ing the voyage, the master is by law created 
 
 Q. B. Ex. Ch. 225. SeeHinf/stonx. Wendt, agent for the benefit of all concerned; and 
 
 45 L. J. (J. B. 440, L. R. 1 Q. B. D. ZQT,posf, his acts done under such circumstances, in 
 
 as to the master's lien in such a case. See the exercise of a sound discretion, are bind- 
 
 the cargo ex Argos, ante, 310 (?»), where ing upon all the parties interested iu the 
 
 the goods M-ere not allowed to remain voyage. AMicre a cargo is so much injured 
 
 at the destined port and were carried back that it will endanger the safety of the ship 
 
 again. and cargo, or become utterly worthless, it 
 
 (o) Proprie piynus dicimus, quod ad ere- is the duty of the master to land and sell it
 
 4. AS TO GAEGO DUEING VOYAGE. 
 
 O 1 i > 
 
 oLo 
 
 [another with timber or iron ; one method may be proper in distant 
 regions, anotlier in the vicinity of the merchant ; one in a frequented 
 navigation^ another on nnfrequented shores. The wreck of the ship 
 is not necessarily follow'cd by an impossibility of sending forward the 
 goodsj and does not of itself make their sale a measure of necessity 
 or expedience : much less can the loss of the season, or of the proper 
 course of the voyage^ have this effect (/). An unexpected interdic- 
 tion of commerce, or a sudden war, may defeat the adventure, and 
 oblige the ship to stop in her course ; but neither of these events doth 
 of itself alone make it necessary to sell the cargo at the place to Avhich 
 it may he proper for the ship to resort. In these, and many other 
 cases, the master may be discharged of his obligation to deliver the 
 cargo at the place of destination, but it does not therefore follow 
 that he is authorized to sell it, or ought to do so. What, then, is 
 he to do ? In general, it may be said, he is to do that which a wise 
 and prudent man will think most conducive to the benefit of all 
 concerned {g) . 
 
 In so doing, he may expect to be safe, because the merchant will 
 not have reason to be dissatisfied ; but what this thing will be, no 
 general rule can teach (h) . Some regard may be allowed to the 
 interest of the ship and of its owners, but the interest of the cargo 
 must not be sacrificed to it. Transhipment for the place of destina- 
 tion, if it be practicable, is the first object, because that is in fur- 
 therance of the original purpose ; if that be impracticable, retui-n or 
 a safe deposit (i) may be expedient. The merchant should be con- 
 sulted if possible {k). A sale is the last thing that the master should 
 think of, because it can only be justified by that necessity which 
 supersedes all human laws. If he sells without necessity, his owners, 
 as well as himself, will be answerable to the merchant (/), and they 
 will be equally ansAverable if he places the goods at the disposal of a 
 Vice- Admiralty Court, in a British colony, and they are sold under] 
 
 Chap. 5. 
 
 at the place where the necessity arises, even 
 although it might have heen carried to the 
 port of its destination, and there landed. 
 Jordan v. JFarrcn, Ins. Co. 1 Story, C. C. 
 342, cited in Perkin's American edition of 
 "Abbott, Iiy Story and Shee," p. 447. 
 
 (/) ran Omeruii v. Dowlclc, 2 Canipb. 
 42. 
 
 {ij) [See the judgment of the Court of 
 Common Pleas, delivered by Ch. J. Maxs- 
 riELD, in Christtj \. Eoiv, 1 Taunt. 313. 
 The court appear to have thought that a 
 master bringing back goods under such cir- 
 cumstances might be entitled to a compen- 
 sation from the proprietor of the goods, 
 although they held he could not recover 
 anything against a charterer of his ship who 
 was not the proprietor of the goods, the 
 service not being for his benefit.] 
 
 (7») [I have not found any general rule or 
 principle laid downontliis subject in any of 
 
 the foreign ordinances or authors. The 
 French Ordin., tit. Du Fret, art. 6, is as fol- 
 lows : — " S'il arrtce inlerdicdon de com- 
 merce avec le pays, ]j our le quel le vaisseau, 
 est eih route, et qu'il soii oblif/e de rerenir 
 avec son char<jemcni, il ne sera du ati 
 ma'drc que lefrct de ValJer, qtiand inciiie le 
 navire auroit etc affrctp allant et tenant.'' 
 — And Code de Commerce, art. 299.] 
 
 (/) [See an instance of deposit, which 
 seems not to have been questioned in Lid~ 
 dard v. Lopes, 10 East, 526, post, Chap. 9 
 of this Part.] 
 
 {¥) See Wilson v. Miller, 2 Stark. 1. 
 
 (/) [Freeman v. East India Co., 5 B. & A. 
 617, and Wilson v. Dic/cson, 2 B. & A. 2.] 
 To the extent of the value of the ship at 
 the time of the sale, and of the freight she 
 Mould have earned : the Triune, 3 Hagg. 
 114; post, Chap. 7 of this Part.
 
 Sl4 DUTIES OF MASTER AXD OWNERS. 
 
 Part IV. ['^^^ order of the court, siicli a court having no authority to order a 
 
 sale («). And the persons who buy under such circumstances will 
 
 not acquire a title as against the merchant, but must answer to him 
 for the value of the goods (6).] 
 
 " It is clear/^ said Lord Dexmax, delivering the judgment of the 
 Coiirt of Queeu^s Bench, in the case of Shiptoti v. TJtorntoii (c), 
 ^' that by the contract, the shipowner, and the master as his agent, 
 is bound to carry the goods to their destination in his owii ship, 
 if not prevented from doing so by some event which he has not 
 occasioned, and over which he has no control. When, however, 
 such an event has occurred to interrupt the voyage, as above defined, 
 and the shipowner or master (for we think no distinction can be 
 made between the two) has no opportunity of consulting the freighter, 
 there seems to be much disagreement in foreign ordinances and jurists 
 on the point, Avhcther or not he is bound to tranship, or having con- 
 tracted only to carry in his own ship, he is not absolved from further 
 prosecution of the enterprise, by the vis major, Avhich prevents his 
 accomplishing it in the literal terms of his undertaking. By the 
 Bhodian law, the laws of Oleron, art. -1, and the ordinances of 
 VYisbuy, art. 16, the master was at liberty, but was not bound, to 
 tranship. The old French ordinance, on the other hand, in precise 
 terms imposed the obligation upon him : ' En cas que le vaisseau ne 
 piiisse etre raccornmode, le nia'itre sera oblige d'en louer incessament 
 un autre.' — Art. 11, tit. Du Fret {d). The terms of this ordinance 
 occasioned, however, much controversy — Pothier and Yalin maintain- 
 ing they were not imperative, except as a condition of earning full 
 freight; Emerigon, on the other hand, insisting that the duty was 
 strictly cast upon the master as the agent of the freighters (e). 
 The modern French code appears to adopt this view of the question. 
 The words of the Code de Commerce {f) are, on this point, almost 
 the same as those we have cited from the ordinance ; and it is stated 
 by Chancellor Kext, who, in his Commentaries, vol. 3, pp. 207, 213 
 (3rd cd.), very ably and learnedly sums up the whole question. That 
 Boulay Paty and Pardessus, in their Commentaries upon it, have 
 agreed in holding to the construction adopted by Emerigon. 
 
 "All authorities, however, fre in unison to this extent, that the 
 master is at liberty to procure another ship to transport the cargo to 
 the place of destination ; and in these Avords Lord Texterdex cau- 
 tiously lays down the rule of our law. It may, therefore, safely be 
 taken to be either the duty or the right of the shipoAvner to tranship, 
 
 {a) Cannan v. Meahuni, 1 Bliig. 243, (/) Art. 296. — Si le Capitaine cd con- 
 
 and 8 B. Mco. 127. iraint de /'aire radouber le navire pendant 
 
 (h) Morris v. Robinson, 3 B. & C. 196. h voyage, Vaffn'teur est tenu d'atlendre, ou 
 
 (f) 1 Per. k Dav. 216; 9 Adol. & E. de paijer le fret en entier. Bans le cas ou 
 
 3li. See the facts of that case, post, le navire ne pourrait itre radoiibr le cap!- 
 
 Chap. 9 of this Part. taine est tenu n'cn loiter ati autre. <S7 le 
 
 (d) Pothier, vol. 11, Traite lies Coiitrats capitainc n'a pu loucr un autre navire, Ic 
 (le Louage Maritime, Parts 1 — 3, s. 68 j fret n'est du qu'ci proportion dc ce que le 
 A'aliii, art. 11, tit. Du Fret, 1, \i. 618. voi/age est avance, 
 
 (e) Ti-aite des Assurances, vol. 1, Chap. 
 12—16.
 
 4. AS TO OAEGO DURING VOYAGE. 315 
 
 ill the case above supposed. If it be the former, it must be so in Chap. 5. 
 
 virtue of his original contract — and it shoukl seem to result from 
 
 a performance by him of that contract that he will be entitled to the 
 full consideration for which it was entered into, without respect to 
 the particular circumstances attending its fulfilment : on the other 
 hand, if it be the latter, a right to the full freight seems to be 
 implied — the master is at liberty to tranship ; but for what purpose^ 
 except for that of earning his full freight at the rate agreed on ? In 
 the case supposed, we may introduce another circumstance : let the 
 OAvner of the goods arrive, and insist, as he undoubtedly may, that 
 the goods shall not proceed, but be delivered to him at the 
 immediate port, there is no question but that the whole freight at the 
 original rate must be paid, and that, because the freighter prevents 
 the master, who is aljlc and willing, and has the right to insist on it, 
 from fulfilling the contract on his part, and because the sending the 
 goods to their destination in another vessel is deemed a fulfilment of 
 the contract. If, therefore, the owner of the goods be not present, 
 and personally exercises no option, still the shipowner, in forwarding 
 the goods, must have the same rights, and in so doing, must be 
 taken to exercise them with the same object in view. 
 
 " One question, however, has been asked, which it would not be 
 right to pass over : What, it has been said, if the transhipment can 
 only be effected at a higher than the original rate of freight — which 
 party is to stand to that loss ? By the French ordinance and the 
 Code de Commerce (to which Chancellor Kent refers), the ship- 
 owner is entitled to charge the cargo with the increased freight ; 
 and, as a consequence of that rule, it becomes an average loss, and, 
 in case of an insurance, must be made good by the insurers {(/) . No 
 case of the sort, that we are aware of, has occurred in this country, 
 nor is it necessary for us to express any opinion further than as bears 
 on the present question. 
 
 " It may well be that the master's right to tranship may be 
 limited to those cases in which the voyage may be completed on its 
 original terms as to freight, so as to occasion no further charge to 
 the freighters ; and that, where freight cannot be procured at that 
 rate, another but familiar principle will be introduced — that of 
 agency for the merchant — for it never must be forgotten that the 
 master acts in a double capacity : lie is agent of the owner as to the 
 ship and freight, and agent of the merchant as to the goods (h). 
 These interests may sometimes conflict with each other ; and from 
 that circumstance may have arisen the difticulty of defining the 
 master's duty, under all circumstances, in any but very general 
 terms. The case now put supposes an inability to complete the con- 
 tract on its original terms in another bottom, and therefore the 
 ovv'ner's right to tranship will be at an end ; but still, all circum- 
 stances considered, it may be greatly for the benefit of the freighter 
 that the goods should be forwarded to their destination, even at an 
 
 (ff) Eiucrigou, Traite dcs Assur. c. 12, agency, Tlierbooin v. Chapman, 13 M. & 
 s. ll). Code ik' Couinicicc, 350. W. 230. 
 
 iji) But see, up:)U thec\te;itof this double
 
 316 DUTIES OF PIASTER A.ND OWNERS. 
 
 Part IV. increased rate of freight ; and if so^ it -will be the duty of the master, 
 — ■ as his agent, to do so : in such a case the owner will be bound by 
 the act of his agent, and of course be liable for the increased freight. 
 The rule Avill be the same "whether the transhipment be made by 
 the shipowner or the master; and, in applying it, circumstances 
 make it necessary, on the one hand, to repose a large discretion 
 in the master or owner, while the same circumstances require that 
 the exercise of that large discretion should be verj' narrowly 
 watched." 
 
 [Moreover, the master must, during the voyage, take all possible 
 care of the cargo («) . If it require to be aired or ventilated, as fruit 
 and some other things do, he must take the usual and proper methods 
 for this purpose [b] ; and although he is not responsible for injury 
 done to it in consequence of a leak in the ship occasioned by tempest 
 or other accident ; yet where rats occasioned a leak in the vessel, 
 Avhereby the goods were spoiled, the master was held responsible for 
 the damage, notwithstanding the crew afterwards, by pumping, &c., 
 did all they conld to preserve the cargo from injury (c). And this 
 determination agrees with the rule laid down by Roccns, who says, 
 "■ If mice eat the cargo, and thereby occasion no small injury to the 
 merchant, the master must make good the loss, because he is guilty 
 of a fault ; yet if he had cats on board his ship, he shall be ex- 
 cused'^ (f/). This rule, and the exception to it, although bearing 
 somewhat of a ludicrous air, furnish a good illustration of the general 
 principle by which the masters and owners are held responsible for 
 every injury that might have been prevented by human foresight or 
 care. In conformity to Avhich principle they are responsible for 
 goods stolen or embezzled on board the ship by the crew or other 
 persons {e), or lost or injured in consequence of the ship sailing, in 
 fair weather, against a rock oi* shallow known to expert mariners (/) .] 
 As to the owners of a general ship being liable as common carriers, 
 and as to the restriction of their liability by the bill of lading, see 
 ante, p. 257 {ff). 
 
 [If the master, being compelled to take refuge in a foreign port 
 diu'ing the course of his voyage, has occasion for money for the 
 repairs of the ship, or other expense necessary to enable him to pro- 
 secute and complete the voyage, and cannot otherwise obtain it, he 
 may, as hath been before observed, cither hypothecate the whole 
 cargo, or sell a part of it for this purpose (A) ; in the latter case, if 
 the ship reach the place of destination, the merchant Avill be en-] 
 
 (ff) Emerigon, torn. 1, p. 337. I" order restricted by the bill of lading; see ante, 
 
 to ascertain the master's duty in this re- 257;i^os^, Chap. 6 of this Part; i«rero«t v. 
 
 spect, the charter-party or bill of lading Dntn/, 22 L. J. Ex. 2 ; 8 Ex. 166. Kiiij v. 
 
 must be referred to. Wheeler, post, 333. 
 
 {h) Davidson v. Gtvi/niie, 12 East, 381. (e) [Uoccns, not. -10; Wollwood, tit. 9, 
 
 (V) Dale V. RaU, 1 Wils. 281. p. 30; sec jjos/, Chap. 6 of this Part, s. 4.] 
 ((/) [Roccns, not. 58; and see .foues on (/) Emerigon, torn. 1, p. 373. Roccus, 
 
 Railmcnts, p. 105. This rule is laid down not. 55. 
 
 in the Consolato del Mare, cc. 65 and 66, and (</) Proprietors of the Trent and Merieii 
 
 adopted by all foreign \\ritcrs on this sub- Navi<jation\. IT'ood, 3 Esp. 127. Sec Broun 
 
 ject. Emerigon, toui. 1, pp. 377, 378.] Rut v. ^LaJlctt, 5 C. R. 509. 
 wheiv the shipowner is a common carrier (/<) Tlie Gratiludine, 3 Robs. Ad. Rep. 
 
 he is liable as such unless his liability is 240, cited ante, p. 120.
 
 5. ON COMPLETION OF VOYAGE. 317 
 
 [titled to receive the clear value for which the goods might have been Chap. 5. 
 sold at that place (i) ; or he may take the sum for which the goods 
 actually sold^ and_, if he is content to do so, he may deduct that sum 
 from the money payable for the freight of his other goods : and this, 
 although the owner may have assigned the freight to a third person, 
 and the goods were sold without an urgent necessity {k). If the 
 ship afterwards perish, and reach not the destined port, the ordi- 
 nance of Wisbuy expressly declares that the money raised by this sale 
 shall be paid to the merchant by the master (/) ; and Cleirac, 
 Kurick, Valin, and Pothier agree in opinion that the money is, in 
 such a ease, due not only from the master, but also from the owners, 
 because it Avas expended for a purpose of which they were at all 
 events liable to sustain the charge. But none of the other ordi- 
 nances contain such a provision; and Emerigon contends, on the 
 authority of the Consolato del Mare, and of the ordinances of Oleron 
 and Antwerp, that the money is only payable in case of the safe 
 arrival of the ship ; which w^as the opinion also of several persons 
 Avhom Pothier consulted. And this doctrine seems the most reason- 
 able, as the merchant is not thereby placed in a worse situation than 
 if his goods had not been sold, but had remained on board the ship. 
 I cannot find that the question ever arose in this country {m). By the 
 Code de Commerce, the master is to account for the price received, 
 deducting the freight (h) .] 
 
 5. On the Completion of the Voyage. 
 
 [When the ship has arrived at the place of her destination, the 
 master must take care that she be safely moored or anchored, and 
 report his ship and crew, and deliver his manifest and other papers, 
 according to the law and custom of the place (o,)] 
 
 As to the master of every foreign^going ship after the ship's arrival 
 at her final port of destination in the U. K., &c., delivering the agree- 
 ment with the crew to a mercantile marine office superintendent, see 
 sect. 161 ; as to his so delivering a list containing certain particulars, 
 see sect. 374 ; and as to the delivery of the official log, see sect. 
 286. 
 
 (i) lAlers v. Tohin, at Guildhall, October can v. Benson, 1 Ex. 537 ; 3 Ex. 641. But 
 
 30th, 1802, before Lord Ellenboeough, if the ship is lost ou her voyage home, the 
 
 Ch. J., and a special jury, in which the shipper cannot claim the amount for \\'hich 
 
 plaintiffs declared specially in assumpsit his goods would have sold if the ship had 
 
 for not delivering the goods according to the arrived. Atkinson v. Stephens, 7 Ex. 567. 
 
 contract in the bill of lading. Laws of {Ic) Campbell v. Thompson, 1 Stark. 490. 
 
 Oleron, art. 22 ; Ordin. of Wisbuy, arts. 35, \l) [Art. 68. See Emerigon, torn. 2, p. 
 
 45, 69 j French Ordin. liv. 2, tit. 1, Du Capi- 445, where the several .authorities here re- 
 
 taine, art. 19 ; liv. 3, tit. 3, Fret, art. 14, ferred to are cited] 
 
 and Valin thereon ; Pothier, Charte-partie, {m) This is taken from the 5th ed. of 
 
 num. 33, 34. See Molloy, book 2, chap. 2, this work, published in 1827. See Atkinson 
 
 sect. 14 ; and Ordin. of' Rotterdam, arts. v. Stephens, supra. 
 
 133—135 ; 2 Magens, 102, 103.] See Hallett («) Art. 298. 
 
 v. Wif)mm, 19 L. J. C. P. 281; 9 C. U. 580; (o) Bishop v. Ware, 3 Camp. 360; Ord, 
 
 Michardson v. Xourse, 3 B. & A. 237 ; Dun- of Wisbuy, art. 36,
 
 318 DUTIES OF MASTER AND OWNERS. 
 
 Part IV. As to the master on arriving at a port abroad delivering certain 
 docnments to the consular officer^ 8zc., see sect. 279. 
 
 Whilst the ship is in harbonr or port the master should take care 
 to obey the laws and regulations in force at such place^ see 10 & 11 
 Yict. c. 27 (Tiie Harbours, Docks, and Piers Clauses Act, 1847) ; 
 24fc25 Yict. c. 45; 25 & 26 Vict. c. 69; 28 & 29 Vict. c. 125; 
 40 & 41 Vict. c. 16. 
 Provisions in There are some provisions in the Customs Act which should here 
 
 Customs Act. |3g noticed. 
 
 By 39 & 40 Vict. c. 36 (The Customs Laws Consolidation Act) , s. 46, 
 " if any ship ai'riving at any port or place in the United Kingdom or 
 the Channel Islands shall not come as quickly up to the proper place 
 of mooring or unlading as the nature of the port or place will admit, 
 wiihout touching at any other place, and in proceeding to such proper 
 place shall not bring to at the stations appointed by the Commissioners 
 of Customs for the boarding of ships, or if after arrival at such place 
 such ship shall remove therefrom, except directly to some other 
 proper place of mooring or unloadnig, and with the knowledge of the 
 proper officer of the Customs, or if the master of any ship on board 
 of which any officer is stationed neglect or refuse to provide every 
 such officer sufficient room and accommodation, under the deck for 
 his bed or hammock, the master of such ship shall forfeit the sum 
 of 20/.^' 
 
 By sect. 47, " the proper officers of the Customs may board any ship 
 arriving at any port of the United Kingdom or the Channel Islands, and 
 stay on board until all the goods laden therein shall be duly delivered 
 therefrom, or imtil her departure, and shall have free access to every 
 part thereof, with power to fasten down hatch^vays or entrances to 
 the hold, and to mark any goods before landing, and to lock up, 
 seal, mark, or otherwise secure anj^ goods on board such ship, and if 
 any place or any box or chest be locked, and the keys be withheld, 
 any examining or superior officer may open any such place, box, or 
 chest in the best manner in his power ; and if any goods be found 
 concealed on board any such ship they shall be forfeited ; and if the 
 officers shall place any lock, mark, or seal upon any goods on board, 
 or on any place or package in which the same may be, and such lock, 
 mark, or seal be wilfully opened, altered, or broken before due 
 delivery of such goods, or if any of such goods be secretly conveyed 
 away, or if the hatchways or entrances to the hold, after having been 
 fastened down by the officer, be opened, the master of such ship shall 
 forfeit the sum of 100/. : and if the proper officer of the Customs 
 shall place any lock, mark, or seal upon any stores, or upon any 
 place or package in which the same may be on board any ship or 
 vessel arriving in the United Kingdom, and such lock, mark, or seal 
 be wilfully opened, altered, or broken, or if any such stores be 
 secretly conveyed away, either while the ship remains in the port at 
 which she shall have so arrived, or at any other port in the United 
 Kingdom to which she may then be about to proceed, the master of 
 such ship shall forfeit the sum of 20/.'^ 
 
 By sect. 48, " no goods, except diamonds, bullion, lobsters, and fresh 
 fisli of British taking and imported in British ships, which may be
 
 5. ON COMPLETTON OF VOYAGE. 
 
 319 
 
 lauded without report or entry, shall be uushipped from auy ship 
 arriving from parts beyond the seas, or be landed or put on shore, on 
 Sundays or holidays, except by special permission of the Commis- 
 sioners of Customs, nor shall they be so unshipped, landed, or put on 
 shore on any other days, except between the hours of eight o'clock 
 in the morning and four o'clock in the afternoon from tlie first day 
 of March until the first day of November, and between the hours of 
 nine o'clock in the morning and four ©•'clock in the afternoon from 
 the first day of November until the first day of March, or during 
 such other hours as may be appointed by the Commissioners of 
 Customs ; nor shall any goods be unshipped or landed unless in the 
 presence or with the authority of the proper officer of the customs; nor 
 shall any goods entered to be warehoused or liable to any duties of 
 Customs or Inland Revenue l)c so landed except at some legal quay, 
 wharf, or other place duly appointed for the landing or unshipping of 
 goods j nor shall any such goods, after having been unshipped or 
 put into any boat or craft to be landed, be transhipped or removed 
 into any other boat or craft previously to their being landed, without 
 the permission of the proper officer of the customs ; and if any such 
 goods shall be unshipped, landed, transhipped, or removed contrary 
 hereto, the same shall be forfeited ; and if any goods shall be un- 
 shipped or removed from any importing ship for the purpose of being- 
 landed after due entry thereof, such goods shall be forthwith removed 
 to or landed at the wharf, quay, or other place at which the same are 
 intended to be landed, and if such goods are not so removed and 
 landed the same shall be forfeited, together with the barge, lighter, 
 boat, or other vessel employed in removing the same,'" 
 
 By sect. 50, "the master of every ship, whether laden or in ballast, 
 shall, within twenty-four hours after arrival from parts beyond the 
 seas at any port in the United Kingdom, make due report of such ship 
 to the collector or other proper officer in the form {a) No. 1 in Schedule 
 
 Chap. 5. 
 
 (a) The following is tbis form : — 
 
 Port of 
 
 Eepoet. 
 
 Official Number. 
 
 Number of Registry. 
 
 Date of Registry. 
 S If Sailing Vessel 
 i or Steamer. 
 
 British or Foreign ; 
 
 if Britisli, Port of 
 Registry ; if Foreign, 
 
 Country to which 
 she belongs. 
 
 Number of Crew. 
 
 British 
 Seamen. 
 
 Foreign 
 Seamen. 
 
 Name of Master 
 
 and whether 
 
 a British 
 
 or Foreign Subject. 
 
 Port or Place 
 
 from whence 
 
 arrived. 
 
 Hero state the particulars according to the above lieading- 
 
 Total
 
 320 
 
 DUTIES OF PIASTER AXD OWNERS. 
 
 Part IV. ^- *^ ^^"^ ■^^*^*' ^^^^ containing the several particulars indicated in or 
 required thereby^ or in such other form and manner as the Commis- 
 sioners of Customs may direct ; and such report^ except -^^here other- 
 ■svisc specially allowed or provided for by their order or at ports 
 ■where goods may be landed into transit sheds^ shall be made before 
 ])ulk is broken." 
 
 By sect. 51, the master is liable to a penalty of 100/. if he fail to 
 make a due report, and goods not reported may be detained, &c. 
 Bv sect. 52, the person in eliarge of any ship having commission 
 
 Cargo. 
 
 Xame or 
 Names 
 
 of Places 
 where 
 
 laden in 
 
 order of 
 time. 
 
 r.nckagcs aud Ocscriptinns 
 of Goods, rariiculars of Goods 
 
 stowed loose, and General 
 
 Denomination of Contents of 
 
 each Package of Tobacco, 
 
 Cigars, or Snuff intended 
 
 to be Imported at this Port. 
 
 Particulars 
 of Packages 
 and Goods (if 
 any) for any 
 other Port in 
 the United 
 Kingdom. 
 
 C 
 Goods (if 
 any) to be 
 Tranship- 
 ped or to 
 remain on 
 Board for 
 Exportation 
 
 Kame of 
 Consignee. 
 
 Hei'e state tlie pavticitlars according to the above headings, or if iu Ballast, state 
 "in Ballast onlv." 
 
 If any wreck fallen 
 in with or picked 
 up to he stated. 
 
 Stokes 
 
 Surplus stores remaining on board, viz. : 
 
 Number of alien passengers (if any) 
 Pilot's names . . - - 
 At what station ship lying • 
 Agent's name aud address - 
 
 -1 
 
 I declare that the above is a just report of my ship and of her lading, and that the par- 
 ticulars therein inserted are trae to tlie best of my knowledge, and that I have not broken 
 bulk or delivered any goods out of my said ship since her departm-e from the last 
 
 foreign place of loading (except, if so, at , siatinc/ where). 
 
 Signed and declared this 
 
 (Signed) _ 
 
 day of 
 In presence of _ 
 
 Master, 
 
 ,187 
 
 Collector:
 
 5. ON COMPLETIOX OP VOYAGE. 321 
 
 from Her Majesty or from any foreign state has to deliver an account Chap. 5. 
 
 of goods on board under a penalty of 100/. Such a ship is liable to 
 
 search. 
 
 By sect. 53, '' the master of every ship arriving from parts beyond 
 the seas shall, at the time of making report, answer all such questions 
 relating to the ship, cargo, crew, and voyage as shall be put to him 
 by the collector or other j)roper officer ; and if he refuses to answer, or 
 does not answer truly, or if after the arrival within four leagues of 
 the coast of the United Kingdom bulk shall be broken, or any 
 alteration made in the stowage of the cargo of such ship so as to 
 facilitate the unloading of any part of such cargo before report of 
 such ship and cargo, or if any part be staved, destroyed, or thrown 
 overboard, or any package be opened, unless cause be shown to the 
 satisfaction of the Commissioners of Customs, in every such case the 
 master shall forfeit the sum of 100/.^^ 
 
 By sect. 54, '^if the contents of any package intended for exportation 
 in the same ship shall be reported by the master as being unknown 
 to him, the officers of the customs may open and examine such 
 package on board such ship, or bring the same to the Queen's ware- 
 house for that purpose; and if there be found therein any goods 
 which are prohibited to be imported such goods shall be forfeited, 
 unless the Commissioners of Customs shall permit them to be 
 exported. '' 
 
 By sect. 75, if goods remain on board importing ship beyond four- 
 teen days it may be detained until expenses of watching, &c., goods 
 are paid. 
 
 See mite, p. 292, the provisions in the Customs Act as to the un- 
 shipment, &c., of goods carried coastwise, and as to the duties of the 
 master. 
 
 By 34 & 35 Yict. c. 105, The Petroleum Act, 1871 («), s. 5, '' the ^J^f '^^^^Jf 
 owner or master of every ship carrying a cargo, any part of which petroleum!^ 
 consists of petroleum, to Avhicli this Act applies, on entering any 
 harbour within the U. K. shall give notice of the nature of such 
 cargo to the harbour authority having jurisdiction over such harbour. 
 If such notice is not given the owner and master of such ship shall 
 each incur a penalty not exceeding the sum of 500/., unless it is 
 shown to the satisfaction of the Court before which the case is tried 
 that neither the owner nor the master knew the nature of the goods 
 to wdiich the proceedings relate, nor could with reasonable diligence 
 have obtained such knowledge." 
 
 The master is bound also, under heavy penalties, not to commit or 
 sanction any violation of the laws for the prevention of smuggling {b) , 
 the breach of which may also occasion serious loss, by forfeiture, to 
 his owners. 
 
 Having complied with the regulations in the Customs Act and with Delivery of 
 other Acts when they apply, and with those prescribed by the law^s and '^'^^'S'^- 
 customs of the place, the master must, without delay, deliver the cargo 
 
 {a) Amended by 12 & 43 Vict. c. 47. {b) 39 & 40 Yict. c. G6, ss. 169—209.
 
 322 DUTIES OF MASTER AND OWNERS. 
 
 Part IV. to the mercliant or his consignees, upon production o£ the bills of lading 
 and payment of the freight and other charges due in respect of it ; 
 and he has no right to detain the goods for Avharfage if the consignee 
 tenders the freight, and requires them to be delivered over the ship^s 
 side ; and this although a sort of usage was proved that when goods 
 are put over the ship's side, after she is moored, hali-wharfage is due 
 in respect of them, which was contended to be a reasonable charge, 
 as the goods derive a benefit from the ship being moored at the wharf, 
 although not actually loaded there. "If the goods,'^ said Chief Justice 
 Mansfield, " are not landed, a compensation must be made for the 
 benefit derived from the Avharf by the owner of the ship. The goods 
 cannot be subjected to this charge more than to many others, which 
 are incurred by the ship in the course of her voyage («) . And if the 
 consignee require to have the goods delivered to himself, and direct 
 the master not to land them on a wharf at London, the master must 
 obey the request ; for the wdiarfinger has no legal right to insist upon 
 the goods being landed at his wharf, although the vessel be moored 
 against it"" {b). 
 
 [If, by the terms of the charter-party, a particular number of days 
 is stipulated for the delivery, either generally or by way of demurrage, 
 the master must wait the appointed time for that purpose (c) . These 
 charges are in ordinary cases primage, and the usual petty average, 
 as expressed in the bill of lading. In case of any loss that became 
 the subject of general average, the civil law imposed upon the master 
 the duty of adjusting and settling such average, and obtaining from 
 the ow^ners of the cargo saved the sums to be paid as a contribution 
 to the loss, and allowed him to detain the cargo for that purpose {d) . 
 This power of detaining the cargo is also given by the laws of 
 Oleron (e), and by the French ordinance (/). It is said to be the 
 practice in this country, in the case of a general ship, for the master 
 to take security from the merchants before he delivers the goods, for 
 payment of their shares of this contribution when the average shall 
 be adjusted [g] . 
 
 If goods are conveyed in pursuance of a charter-party, the right of 
 detention for the freight may depend upon the terms of the particular 
 contract (A). Where there is no special contract, as in the case of a 
 general ship, the master is not bound absolutely to part with the 
 possession of any part of his cargo, until the freight and other 
 charges due in respect of such part are paid. Valiu informs us, 
 that the entire contents of a single bill of lading are to be considered] 
 
 (a) Bishop v. Ware, 3 Campb. 360. (e) Art. 9. 
 
 (6) Si/eds V. Hap, 4 Term Rep. 260. (/) Liv. 3, tit. 8, Du Jet. art. 21. 
 
 Stephen v. Costa, 1 Bl. Rep. 413, 423. {g) [So deposed by a gentleman very cou- 
 
 (c) How these days are reckoued, see versant with this business, in the cause of 
 
 ante, p. 243. See Capper v. Wallace, 49 3Itier and others v. I'ander Deyl, Guildhall 
 
 L. J. Q. B. 350, where, under the circum- Sit. at Mich. Terra. 1803, before Lord 
 
 stances, it was held that the voyage was at Ellenboeotjgh, Ch. J.] See the form in 
 
 an end at the mouth of a canal, and was the Appendix ; post. Part VI., Chap. 1. 
 
 the place of discharge. {h) See ante. Chap. 2 of this Part. 
 
 {d) Dig. 14, 2, 2.
 
 6. ON COMPLETION OF VOYAGE. 323 
 
 [as one part, although consisting of very diflPerent articles ; but that Chap. 5. 
 the contents of one bill of lading are not bound to the payment due 
 for the contents of another bill of lading, although consigned to the 
 same person [i). In this country, however, it has been held, that 
 the master may detain any part of the merchandise for the freight of 
 all that is consigned to the same person {k), which seems to be a more 
 reasonable and convenient rule. The master, however, cannot detain 
 the goods on board the ship until these payments are made, as the 
 merchant Avould then have no opportunity of examining their con- 
 dition. By the ordinance of Wisbuy (/), and also by the French 
 ordinance {m), the master may seize and detain the goods in the 
 lighters or barges, which are to transport them to the quay, and by 
 the former he may detain the lighters by the sllip^s side. Cleirac [n] , 
 in his commentary on the laws of Oleron, says that the same power 
 is given by the ordinance of Philip the Second and by the Consolato 
 del Mare, and that the latter allows him to detain goods equal in 
 value to four times the amount of the freight. The ordinance of 
 Rotterdam allows the master to detain the goods for his freight, but 
 requires him to unload and take care of them, that they may not be 
 diminished or spoiled (o) . In England, the practice is to send such 
 goods as are not required to be landed at any particular dock to a 
 public whai-f, and order the wharfinger not to part with them till the 
 freight and other charges are paid, if the master is doubtful of the 
 payment. And by the law of England, if the master once parts with 
 the possession out of the hands of himself and his agents, he loses his 
 lien or hold upon the goods, and cannot afterwards reclaim them (p) . 
 If the master land his goods at any particular wharf or dock, in 
 obedience to an Act of Parliament, he does not thereby part with his 
 lien {q) .] We have noticed, cmte, p. 240, the provisions in the 25 & 26 
 Vict. c. 63, as to a shipowner landing goods and preserving his lien 
 over same. 
 
 [The baggage of a passenger may be detained for the passage 
 money, which is to be considered as payable in respect of the person 
 and his baggage ; but the passenger himself cannot be detained, nor 
 the clothes taken from his person (?') . The master has no right to] 
 
 (i) Valin on the French Ordinance, torn. provided they have not in the meantime 
 
 1, p. 668. passed into the hands of a third person ; so 
 
 (k) \_Sodergreen v. Flight, Guildhall Sit. by the Code de Com. art. 307.] And see 
 
 p. Trinity Term, 1796, before Lord Kenyon, JIammond v. M'Crie, 3 C. L. & E. 1198; 
 
 Ch. J., quoted 6 East, 622.] When other- Mors Le Blanch v. Wilson, 42 L. J. C. P. 
 
 wise, see ante, p. 234. 70; L. R. 8 C. P. 227. 
 
 (Z) Art. 57. {q) [ Wilson v. Kymer, 1 M. & S. 157. 
 
 (m) Liv. 3, tit. 3, Fret, art. 23. The goods in this case were landed under 
 
 (») Art. 21, note 3, p. 72. the West India Dock Act, 39 Goo. 3, c. 69, 
 
 (o) Arts. 157, 158 ; 2 Magens, 106. which does not expressly reserve the lieu 
 
 {p) C^y *^^6 French Ordiu. liv. 3, tit. 3, for freight, as is doue by the London Dock 
 
 Fret, art. 24, the lien or privilege continues Act, 45 Geo. 3, c. 58, s. 15.] 
 while the goods are on board the ship, in {r) Wolf v. Summers, hei'ovehi.WUE^Cv:, 
 
 the lighters, or on the quay, and even for a J., at Guildhall, 2 Campb. 631 , 
 fortnight after they have been delivered, 
 
 y2
 
 324 "nrTiES of martet^ and ownet^s. 
 
 Part IV. [detain goods actually bvouglit for the payment of Avliat is usually 
 called dead freight, as I have before observed (a). 
 
 The manner of delivei'ing the goods, and consequently the period 
 at which the responsibility of the master and owners will cease, de- 
 pend upon the custom of particular places, and the usage of particular 
 trades {b) . Thus, a hoyman, who brings goods from an outport into 
 the port of London, is not discharged by landing them at the usual 
 ■wharf, but is bound to take care and send them out by land to the 
 place of consignment (c) .] 
 
 With respect to goods coming from a foreign country, it was said by 
 Mr. Justice Buller, that the bill of lading was only an undertaking 
 to carry from port to port, and that, according to the established 
 course of trade, a delivery on the usual wharf is such a delivery as 
 will discharge the master (d). The master should, however, recollect 
 that his engagement is to deliver the goods to the persons mentioned 
 in the bill of lading or their assigns; and where, to an action for not 
 delivering goods shipped on board a steam-packet at Dublin to the 
 plaintiff or his assigns at the port of London, pursuant to the bill of 
 lading, the defendant pleaded, that he safely landed and deposited 
 the goods in and upon a certain wharf called Fenniug^s wharf, at the 
 said port of London, there to remain until the same could be delivered 
 to the plaintiflp or his assigns — the said wharf being a place at which 
 goods conveyed in steam-vessels from the port of Dublin to the port 
 of London were on their arrival used and accustomed to be landed 
 and deposited, for the use of the consignees thereof, and a place fit 
 and proper for the purpose ; and that the goods Avere there destroyed 
 by an accidental fire, without alleging such delivery to have been 
 made according to the custom or practice of the port of London, or 
 that a reasonable time was allowed to elapse after the ship's arrival 
 at the port of London, in order to give time to the consignee to claim 
 and receive his goods alongside the vessel — it was held ill. ''The 
 defendants,^' said Chief Justice Tindal, " profess in their plea to 
 substitute a delivery at Fenniug's wharf, in the port of London, for 
 and in the place of a delivery ' at the port of London, to the plaintiflT 
 or his assigns,' as required by the terms of the bill of lading. But 
 we know of no general rule of law which governs the delivery of 
 goods under a bill of lading, where such delivery is not expressly in 
 accordance with the terms of the bills of lading, except that it must 
 be a delivery according to the practice and custom usually observed 
 in a port or place of delivery. An issue raised upon an allegation 
 of such a mode of delivery would accommodate itself to the facts of 
 each particular case, and would let in every species of excuse from 
 the strict and literal compliance with the precise terms of the bill of 
 
 (a) See ante, p. 231. reasonable time at a foreign port, and uo 
 
 (b) See Valin on the Frencli Ordinance, person having produced the bill of lading, 
 torn. 1, p. 530. may deliver the goods to some person to 
 
 (c) [TTai-dcIl V. Mourillyan, 2 Esp. N. P. keep till the bill of lading is produced. 
 
 C. 693.] See Howard v. Shepherd, 9 C. B. {cl) Arguendo in Hyde v. Trent and 
 
 297, in which it was said by Mafle, J., Mersey Xaviyation Co., 5 Tenn. Rep. 397. 
 that the master of a ship, aft^er waiting a
 
 5. ON COMPLETION OP VOYAGE. 325 
 
 lading, which must be necessarily allowed to prevail, with reference Chap. 5. 
 
 to the means and accommodation for landing goods at different 
 
 places, the time of the arrival and departure of the vessel, the state 
 of the tide and wind, interruptions from accidental causes, and all 
 the other circumstances which belong to each particular port or place 
 of delivery^-' (e). 
 
 [If the consignee send a lighter to fetch the goods, it seems the 
 master of the ship is obliged, by the custom of the river Thames, to 
 watch them in the lighter, until the lighter is fully laden ; and he 
 cannot discharge himself from this obligation by declaring to the 
 lighterman that he has not hands to guard the lighter, unless the 
 consignee consent to release him from the performance of it (/) . But 
 it has been much contested whether the master is by the usage bound 
 to take care of the lighter after it is fully laden, until the time when 
 it can be properly removed from the ship to the wharf. At a trial on 
 this question, it was held that the master was not obliged to do this {g). 
 When ships arrive from Turkey, and are obliged to perform quaran- 
 tine (A) before their entry into the port of London, it is usual for the 
 consignee to send down persons, at his own expense, to pack and take 
 care of the goods ; and therefore, where a consignee had omitted to 
 do so, and goods were damaged by being sent loose to shore, it was 
 held that he had no right to call upon the master of the ship for a 
 compensation (i).] 
 
 On the arrival of the vessel at her homeward port, and when com- Protests. 
 pelled by accidents or injury to put back, or into a port other than 
 that of her destination, it is usual for the master to present himself 
 before a notary, and cause a protest to be noted, and afterwards drawn 
 up or extended {k). British consuls at foreign ports are empowered 
 by statute to perform notarial acts (/); but inasmuch as their attesta- 
 tion would probably not be deemed abroad of equal authenticity with 
 that of the regular public notary, the master would do well to address 
 himself to that functionary. He should remember, however, that 
 our courts do not adopt the rules of evidence which prevail in foreign 
 courts, and although copies of documents attested by a public notary 
 may be evidence of the originals abroad, they will not be received as 
 such in England (?»). 
 
 The protest is a declaration or narrative by the master of the parti- 
 
 (e) Gatliffy, Bourne, 4 Biug. N. C. 31-i; (k) As to Quarantine, see stat. 6 Geo. 4, 
 
 in tlie Excliequer Chamber, Bourne v. Gat- c. 78 ; 39 & 40 Vict. c. 36, s. 234 ; 38 & 39 
 
 liff, 3 Scott, N. R. 1; 7 M. & G. 850; U Vict. c. 55, sclied. 5, Part III.; and see 
 
 CI. & F. 45. M'CulIocli's Dictionary of Commerce. 
 
 (/) Catley v. Wiuiringkain, Peak. N. P. C. (i) Dunnage v. Jollijfe, before Lord Kex- 
 
 150. TON, Cli. J., at Guildliall Sit. p. Midi. 
 
 {g) \_Rohinson\\Turp'm,Gw\\(!i\vd\\,'Peak. Term. 1789. 
 
 203 (notes), 3rd Ed., before Lord Ellen- (/.) Brooke's Office and Practice of a 
 
 BOROUGH, Ch. J. Tliis was an action by Notary, p. 144. 
 
 the owner of tlic goods against tlie ligliter- (/) 5 & 6 Will. 4, c. 62, s. 15 ; 18 & 19 
 
 man, and the plaintiff obtained a verdict. Vict. c. 42. 
 
 At a former trial, before Sir James Mans- {m) Ajjjylefon v. Lord Brayhrooke, 2 
 
 FIELD, Ch. J., the plaintifl" had been non- Stark. G; 6 M. & S. 34; and Blacky. Lord 
 
 suited.] And SCO S(ro)>r/Y. XrrfaU//, 4 lio^. Brayhrooke, 2 Stark 7 i C? M. & S. 39. 
 & PuU. IG.
 
 326 DUTIES OF PIASTER AND OWNERS. 
 
 Part IV. culars of the voyage, of the storms or bad -weather which the vessel 
 
 has eneountered, the accidents -which have occurred^ and compelled 
 
 liim^ if at an intermediate port, to resort to it^ and the conduct Avhich, 
 in cases of emergency, he had thought proper to pursue. With 
 ■whatever formalities dra-wn up, it cannot be received in our courts as 
 evidence for the master or his owners (a) ; but it may be evidence 
 against him and them, and he should take care to supply from the 
 log-book, his o-wn recollection, and that of the mate^ or trustworthy 
 mariners, true and faithful instructions for its preparation. Protests 
 are often of great utility in matters connected -with the adjustment of 
 losses in marine insurance and in the calculation of averages ; they 
 are received as evidence in foreign courts, and with us credit is often 
 given to their contents by merchants and under writ ers^ Avhen free 
 from all circumstances of suspicion {b) . 
 
 Protests are also made by the master against the charterers of the 
 ship or the consignees of goods for not loading or unloading the vessel 
 pursuant to contract, or within reasonable or stipulated delays ; and 
 by the merchant against the master for misconduct, drunkenness, kc, 
 for not proceeding to sea with due despatch, for not signing bills of 
 lading in the customary form, and other irregularities. 
 
 Forms of protest applicable to ordinary occasions will be found in 
 the Appendix. 
 
 (a) Senat v. Porter, 7 Term. Eep. 158, Notary, p. 0; and sec 5 & 6 Will. 4, c. 62, 
 and Rex v. Scriveners' Co., 10 B. & C. 511. s. 15. See as to log-books, Ev.ndle v. Beau- 
 See the Betsey, 2 Hagg. 28. mont, 4 Bing. 537. 
 
 (b) Brooke's Office and Practice of a
 
 CAUSES WHICH EXCUSE THE MASTER AND OWNEES. 327 
 
 Chap. 6. 
 
 CHAPTER VI. 
 
 ON THE CAUSES WHICH EXCUSE THE MASTER AND OWNERS j 
 AND HEREIN, 
 
 Sects. 1. Acts of God, p. 327. 
 
 2. Perils of the Sea. Pirates. Collision, p. 329. 
 
 3. LigMning, p. 333. 
 
 4. Embezzlement, Rohhery, Sfc, p. 334. 
 . 5. Neglect, Sfc, of Pilots, p. 334. 
 
 6. Restraint of Princes, p. 334. 
 
 1. Acts of God. 
 
 [It has been already intimated (c), that a carrier is in general 
 excused for a non-performance of the contract on his part, occasioned 
 by any event falling within the meaning of the expression Act of God 
 and the King's enemies. The expression Act of God denotes natural 
 accidents, such as lightning, earthquake, and tempest, and not acci- 
 dents, arising from the negligence of man {d), for which it has been 
 already shown that the master and owners, like other common carriers, 
 are sometimes answerable, although no actual blame may be im- 
 putable to them ; for in considering whether they, or other carriers, 
 are chargeable for any particular loss, the question is, not whether 
 the loss happened by reason of the negligence of the person em- 
 ployed in the conveyance of the goods, but whether it was occasioned 
 by any of those causes which, either according to the general rules of 
 law or the particular contract of the parties, afford an excuse for the 
 non-performance of the contract. 
 
 Thus, the master has been held answerable for a loss of the goods 
 occasioned by a seizure of the ship by the officers of the revenue for 
 a supposed violation of the revenue laws, although, in the result of 
 the proceedings under the seizure it may appear that there was no 
 cause for condemnation (e) . And where a shipowner contracted to 
 carry goods safely to London, it was held, that the seizure and con-] 
 
 (f) [In the preceding chapter, pp. 283, word in the exception meaning all Princes 
 
 284. In the preamble to the stat. 26 Geo. 3, and Rulers holding sover. igu authority, 
 
 c. 86, the cases in which the master and Russell v. Niemann, 17 C. B. ',N.S.) 173. 
 owners are exempted from responsibility {d) [_Trent and Mersey Navigation Co. v. 
 
 are expressed to be accidents hy the King's Wood, Easter Term, 23 Geo. 3, in K. B. 
 
 enemies, tke perils of the sea, or the act of Forward v. Pittard, 1 Term Rep. K. B. 27.J 
 
 God.] This exception includes the enemies In Nugent v. Smith, 45 L. J. C. P. 697 ; 
 
 of the Sovereign of the person by whom the L. R. 1 C. P. D. 423, the meaning of the 
 
 bill of lading or contract of carriage is made ; expression " Act of God " is fully discussed, 
 though his title be not that of " King," that (e) Gosling v. Eiggings, 1 Campb. 451.
 
 328 CAUSES WHICH EXCUSE MASTER AND OWNERS. 
 
 Part IV. [fiscaticn of them by custom-house officers at Cadiz, as contrahand, 
 
 did not relieve him from liability («) . 
 
 So in an action [b) brought against the master of a vessel navigating 
 the river Ouse and Humber from Selby to Hulb by a person whose 
 goods had been "wet and spoiled ; at the trial ■whereof it appeared in 
 evidence, that at the entrance of the harbour at Hull there "was a 
 bank, on -which vessels used to lie in safety, but of which a pait had 
 been swept away by a great flood some short time before the misfor- 
 tune in question, so that it had become perfectly steep instead of 
 shelving towards the river, that a few days after this flood, a vessel 
 sank by getting on this bank, and her mast, which was carried away, 
 Avas sufiercd to float in the river, tied to some part of the vessel ; and 
 that the defendant, upon sailing into the harbour, struck against the 
 mast, which, not giving way, forced the defendant's vessel towards 
 tlie bank, where she struck, and would have remained safe had the 
 bank been in its former situation, but on the tide ebbing, her stern 
 sank into the water, and the goods were spoiled ; upon which the 
 defendant tendered evidence to show that there had been no actual 
 negligence. !Mr. Justice Heath, before whom the cause was tried, 
 rejected the evidence ; and he further ruled that the act of God which 
 could excuse the defendant must be immediate — but this was too 
 remote; and directed the jury to find the verdict for the plaintiff", and 
 they accordingly did so. The case was afterwards submitted to the 
 consideration of the Court of King^s Bench, who approved of the 
 direction given by the learned Judge at the trial, and the plaintiff' 
 succeeded in the cause.* There does not appear to have existed in this 
 case any bill of lading or other instrument of contract ; and the ques-] 
 
 (a) Spence v. Chadwivk; 10 Q. B. 517. ing away with, ov by or through the actual 
 {b) [^Sm'dh V. 8hep1i£rd. This cause was default of the said owner or owners, master, 
 first tried at the Sunnner Assizes for York- mariners, or other person or persons cm- 
 shire, 1795, and the phiintifc nonsuited, the phj^cd in and on board of sueli shijjs or 
 judge being of opinion that no case of neg- vessels; any law, usage, or custom to the 
 ligcnce was proved. The nonsuit was set contrary thereof iu anywise not-vithstand- 
 aside by the Court of King's Bench, aud a ing." And that no owner or master of 
 new trial granted, that the facts might be any ship or vessel employed in the nariga- 
 more fully inquired into. It was tried a tion of the tideicat/ of any river, aud not 
 second time at the Lent Assizes following. employed in the navigation of the high 
 The account in the text is of the evidence seas, sliould be subject to answer for any 
 given at the second trial, which differed iu loss or damage which should "happen at or 
 some particulars from that giveu at the first arise at or below any port or place in such 
 trial. In Easter Term following, a new tideway where ships or vessels employed in 
 trial was moved for, biit a rule to show the coasting trade do or shall load or dis- 
 cause refused. charge by entry or sufferance,'"' to any goods 
 Several shipowuei-s, being greatly alarmed on board, unless such loss or damage should 
 at the decision of this cause, petitioned par- happen or arise in the ways beforc-men- 
 1 lament for an alteration of the law on this tioned with respect to ships navigating the 
 subject J and a bill passed the House of high seas. 
 
 Commons, enacting, that no owner or mas- But this bill Avas rejected by the House 
 
 ter of any ships or vessels employed in the of Lords. 
 
 navigation of the high seas should be sub- This led to the alteration of the bill of 
 
 ject to answer for any loss or damage which lading mentioned, ante, p. 258, and I pi*e- 
 
 should happen to any goods on board by sume, also, to the notice mentioned to have 
 
 any accident whatever, unless the same been given in the case of Ellis v. Turner 
 
 should happen or arise " by or tlirough the and another, ante, p. 87-] 
 robbery, embezzlement, secreting, or mak-
 
 2. PERILS OF THE SEA — PIRATES — COLLISION. 329 
 
 [tion^ therefore^ depeuded upon general principles^ and not upon the Chap. 6. 
 
 meaning of any particular words or exception.] An obstruction from 
 
 natural causes, such as the want of sufficient water (until a date some 
 weeks after the expiration of the lay days alloAved by the charter- 
 party) in a river on which a port of loading is situate, is no excuse for 
 the abandonment of a voyage (e). 
 
 2. Perils of the Sea. — Pirates.— Collision,. 
 
 [The only exception formerly made in the common bill of lading 
 was the perils of the sea, which words certainly denote the natural 
 accidents peculiar to that clement, and in more than one instance 
 have been held to extend to an event not attributable to natural 
 causes. In the present chapter, therefore, I shall first consider the 
 meaning of this extensive phrase, j^ei'ils of the sea, and then proceed 
 to mention other excuses Avliich the wisdom of the legislature has 
 introduced in very late times. 
 
 In considering this subject, the first question that presents itself to 
 the mind of an English lawyer is. How is the question of perils of the 
 sea to be decided ? The particular manner in which a loss happens 
 must always be a question of fact ; but admitting it to have happened 
 in a particular manner, is the judge before whom the cause is tried to 
 pronounce Avhether that manner be a peril of the sea, or are the jury 
 to declare it by their verdict ? In general, the construction of ambi- 
 guous expressions in written instruments is the proper ])rovincc of the 
 judge ; but in mercantile instruments it often happens that the judge 
 must have recourse to the usage of trade, and the practice among mer- 
 chants, to obtain a proper knowledge of the meaning of the words. 
 When the meaning of the v/ords is ascertained, it will rarely happen 
 that the judge and jury can differ in the conclusion ; and jjrobably this 
 question, although it might afford matter of speculation, will never 
 become a subject of serious practical inquiry. 
 
 A very remarkable case to this purpose happened about the end of 
 the reign of Charles the First. To an action of covenant on a charter- 
 party, wliich contained an exception of the perils of the sea, the defen- 
 dant pleaded that the ship was taken by hostile persons unknown, armed 
 in a Avarlike manner ; and thereupon the question whether such a 
 capture were within the exception was brought before the court by a 
 demurrer in the most strict technical form : the court, however, took 
 the opinion of several merchants by certificate in writing, and after- 
 wards by examination in open court, upon the meaning of the words 
 of this exception as established by usage among them, and decided in 
 conformity to such opinion ((/) . 
 
 At the trial of a cause before Lord Kenyox, in an action upon the] 
 
 (r) Srhitiz::! v. Derr^, 4 K. Sc B. 873 ; .t.kI Style, 132. The case was ai-gued by 
 21 L. .1. Q. B. 193. Twisdeii for tlic plaintiff, and Hale for the 
 
 {d) IPic/cerlvff v. Barclat/, 2 Roll. Ab. 2 18, dcfeiidaut."!
 
 330 CAUSES WHICH EXCUSE MASTER AND OWNERS. 
 
 Part IV, [case brought by a mei'chaut against the owner of a ship, for not safely 
 conveying goods, Avherc the -whole matter was left open for discussion 
 by a plea of the general issue, this question was proposed to be 
 agitated by the counsel. His lordship, however, without hesitation, 
 declared his opinion to be, that the question was purely a matter 
 of fact for the consideration of the jury; upon the particular cir- 
 cumstances of the case the jury and his lordship coincided, and there- 
 fore the case afforded no opportunity of a more solemn discussion of 
 the question («). 
 
 These cases certainly furnish very strong authority to show, that 
 even if the decision of this question does strictly and properly belong 
 to the judge, yet his decision Avill be guided by usage and the course 
 of practice among merchants, which are matters of endence and of 
 fact. 
 
 In the case of Pickering v. Barclay, which I just before alluded 
 to {b) , the ship had been overpowered and plundered on the high seas 
 by pirates ; and the question was, whether the owners Avere answer- 
 able for the goods ? And it was determined, in the manner before 
 mentioned, that they were not answerable, " because,^^ says the 
 reporter, '^ the taking by pirates was accounted a peril of the sea/' 
 The same question received a similar decision, not long afterwards, in 
 another cause {c) . These determinations agree with the rule of the 
 civil laAV {d). And in the case cited in the preceding chapter ie), in 
 which the owners were held responsible for goods taken by robbery 
 from the ship in the river Thames within the body of a county. Chief 
 Justice Hale took notice of this doctrine, and said, " By the Civil 
 Admiral Law the owners are not responsible for a robbery by pirates 
 at sea." This, however, is be understood only in case the ship 
 does not fall into the hands of pirates by any negligence or fault of 
 the master (/). 
 
 In a case which came before the Court of King's Bench, a shoi't 
 time before the altei'ation of the bill of lading, and which was an 
 action brought to recover the value of goods, for Avhich the master 
 had signed a bill of lading containing an exception only of the perils of 
 the sea, although made during the time of a war, and which goods 
 were lost in consequence of the ship being designedly struck by the 
 vessel of an enemy ; it M'as doubted by the court, whether a loss so 
 occasioned were within the meaning of this exception, and the cause 
 never proceeded to a final judgment ((/). The express exception in 
 this case afforded room to contend, that the exception of the act of the 
 King's enemies, which arises out of general rules of law, was meant 
 to be excluded in the particular instance.] 
 
 (a) Bidler v. Fisher^ Sit. p. Mich, lerva, (/) Emerigon, torn. 1, p. 532. 
 
 40 Geo. 3, at Guildhall. {g) [-Beier v. Tomlinson, Easter Term, 36 
 
 (6) Piclcering v. Barclaj/, ante, p. 329. Geo. 3. The case came before the court on 
 
 (c) Barton v. WoUiford, Comb. 56. a motion for a new trial ; the court directed 
 
 (d) Dig. 4, 9, 31. — Inde Laheo scribit, si a new trial in order that the facts might be 
 quid naufragio aut per vim j)iratanim peri- put upon the record, but it never came on 
 
 erit, non esse iniqutim exceptionem ei dari. again.] 
 
 (e) Morse v. Slue, 1 Vent. 190; ante, 
 p. 285. 
 
 i
 
 2. PERILS OF THE SEA — PIRATES — COLLISION. 331 
 
 [lu the other cases just before mentioned {h), the ship in which the Chap. 6. 
 goods Avere conveyed was run down in daylight, and not in a tempest^ 
 by one of two other ships that were sailing in an opposite direction 
 to her, both of which kept to windward, as did also the defendant's 
 ship ; but it was matter of so much doubt whether the master of the 
 defendant's ship ought to have understood the course which the 
 others would pursue, and have borne to leeward to avoid them, that 
 no blame was considered to be imputable to him for not having done 
 so, nor was any fault attributable to the persons who had the conduct 
 of either of the other ships. This loss was, therefore, held to fall 
 within the meaning of this exception, and to have happened by a peril 
 of the sea. 
 
 It may be proper to point out the distinction between this case and 
 the case of the vessel that struck against the anchor of another, to 
 which there was no buoy, which I have mentioned in the preceding 
 chapter (i). In this case, there was no fault or negligence in the 
 persons belonging to either vessel ; in the other, both parties were 
 held to have been guilty of negligence — the one in leaving his anchor 
 without a buoy, the other in not avoiding it, as, when he saw the 
 vessel in the river, he must have known that there was an anchor 
 near at hand ; or if it be taken that negligence was imputable only 
 to the master who had left his anchor without a buoy, then he was 
 answerable over to the master and owners of the vessel whose cargo 
 had been injured : and indeed the accident happened in the course of 
 a navigation to which the exception of the 2Jerils of the sea did not 
 apply [k) . 
 
 In a case upon a policy of insurance, wherein the loss happened 
 by the circumstance of the master of a British ship mistaking the 
 ship insured for an enemy, and under that mistake firing into her, 
 whereljy she Avas sunk, it was doubted whether the loss could pro- 
 perly be said to have happened by a peril of the sea ; and the point 
 Avas not decided, because the loss was held clearly to fall within some 
 other of the words used in the policy, and the manner of the loss 
 Avas expressly stated in one of the counts of the declaration (/) . In 
 another case, on a policy of insurance, Avherein it appeared that the 
 master of the ship insured, mistaking a British ship of war for an 
 enemy, produced simulated papers, and concealed his British license ; 
 in consequence of which his ship was taken in tow by the ship of 
 Avar, and in order to keep up was obliged to use an extraordinary 
 press of sail, and during a gale of wind and a high sea shipped a 
 quantity of water, Avhereby the cargo was damaged — Lord Ellen-] 
 
 (A) Btiller v. Fisher, ante, p. 330. Laurie v. Douglas, 15 M. & W. 745. It 
 
 (/) Props, of Trent and Mersey Nav. v. seems that the exception in the bill of lad- 
 
 Wood, ante, p. 316. ing only exempts the shipowner from the 
 
 {k) Where the damage to goods arose absolute liability of a common carrier and 
 
 from one of the perils excepted in the bill not from the consequences of the want of 
 
 of lading, but partly also from the mode in reasonable skill, diligence, and care. Notara 
 
 which the ship M^as moored during the un- v. Henderson, 41 L. J. Q. B. 164 j 5 Q. B. 
 
 loading, it was held that the shipowners 346; L. R. 7 Q. B. 225, per cur. 
 
 were not liable if there was no want on their (I) Cullcn v. Butler, 1 Stark. 138, and 
 
 part of ordinary and reasonable care. 5 M. & S. 461.
 
 332 CAUSES WHICH EXCUSE MASTER Xl^D OWXEKS. 
 
 Part. IV. [borough held tins to be a loss by perils of tlic sea {a). lu another 
 case, arising also upon a policy of insurance, •wherein the loss hap- 
 pened by collision, Avithout any neglect or fault on the part of the 
 Helena, the ship insured, and Avas so specially alleged in the declara- 
 tion, tlie underwriters were held answerable ; and Mansfield, C. J., 
 said, " I do not know how to make this out not to be a peril of the 
 sea. "What drove the Margaret against the Helena ? The sea. AVhat 
 was the cause that the crcAv of the other ship did not prevent her from 
 running against the Helena ? Their gross and culpable negligence. 
 But still the sea did the mischief {b). It is reasonable enough that 
 the plaintifts should permit the defendant to use their names as 
 plaintiffs against the owners or crew of the Marr/aret, so as to recover 
 whatever the plaintiffs Avould be entitled to as against the Margaret, 
 and to apply it in diminution of their loss/' In another case, 
 wherein it appeared that a ship Avas hove doAvn on a beach Avithin the 
 tidcAvay, for the purpose of repairing, and the tide liaAing carried 
 away the shores by Avhich she was supported, her sides and some of 
 her timbers Avere injured, the damage was considered as having hap- 
 pened on the land, and not to be a loss by the perils of the sea (c) . 
 Bnt Avhere a ship Avas moored in a harbour, having a hard uneven 
 bottom, and being left by the tide at night, a noise was heard as of 
 timljer breaking, and on the reflux of the tide, there being a consider- 
 able swell in the harbour, she struck the ground hard several times, 
 and in the morning several of her knees Avere found to be broken, 
 this damage Avas held to be a loss by perils of the sea [d). 
 
 But not every loss, proceeding directly from natural causes, is to 
 be considered as happening by the perils of the sea. It was decided 
 by Lord Ken vox, that the destruction of a Acssel by worms at sea 
 Avas not Joss by perils of the sea (e). If a ship perish in consecjuence 
 of striking against a rock or shalloAv, the circumstance under Avhich 
 the event takes place must be ascertained, in order to decide Avhethcr 
 it happened by a peril of the sea or by the fault of the master. If 
 the situation of the rock or shalioAV is generally knoAvn, and the ship 
 not forced upon it by adverse Avinds or tempest, the loss is to be 
 imputed to the fault of the master. On the other hand, if a ship is 
 forced upon such a rock or shalloAV by adverse Avinds or tempests, or 
 if the shallow Avas occasioned by a sudden and recent collection of 
 sand in a place Avhere ships could before sail in safety the loss is to be 
 attributed to the act of God or the perils of the sea (/). In the case 
 mentioned in the beginning of this chapter {g), Lord Kenyon 
 observed, that if an earthquake had removed the bank at the time of 
 the accident, the master Avould have been excused. 
 
 If a vessel, reasonably sufficient for the voyage, be lost by a peril 
 of the sea, the merchant cannot charge the owners by showing that] 
 
 {n) Hagedorn v. Whitmore, 1 Stark. 157. (rf) Fletcher v. Inglk. 2 B. & A. .315. 
 
 {b) [,S'H»7/*v. 6'co«,-l Taunt. 126.] There (e) Rohl \. Pan; 1 Esp. 415; Fafei-soii 
 
 mav be a difference as to the meaning of v. Harris, 1 B. & S. 336. As to a loss by 
 
 " perils of the sea" in policies of insurance delay occasioned by bad weather. See 
 
 and bills of lading-, see per AVilles, J., in Tai/lor v. Dunbar, L. R. 4 C. P. 207. 
 
 drill V. T/ic Geiteral Iron Screw Collier (/) T'.ovfus, not. 55. Strac. de Xautis, 
 
 Co., 35 L. J. C. F. 321 ; L. K. 1 C. V. 600. pars 3. num. 32. 
 
 {c) Thomson v. Whitmore, 3 Tuunt. 227. (g) Smith v. Shepiuird, ante, p. 328.
 
 3, LKiHTXIXO — FreE. P,33 
 
 [a stouter ship would have outlived the peril. This was decided in Chap. 6. 
 
 the ease of a hoj^ driven by a sudden gust of wind against the pier of 
 
 a bridge, through which it attempted to pass, and thereby sunk, in 
 consequence of a shock that a stronger vessel might have sustained 
 without sinking.] 
 
 " No carrier,-" said C. J. Pratt, ^"^is obliged to have a new carriage 
 every journey; it is sufficient if he provide one which, without any 
 extraordinary accident, will probably perform the journey^' [h). 
 
 An injury to goods by rats does not come within the exception in a 
 bill of lading of '^'^ dangers and accidents of the seas, rivers, and 
 navigation " (?'). 
 
 A loss occasioned by the negligence or barratrous act {k) of the 
 master or crew is not a loss by " perils of the sea ^' within the mean- 
 ing of these words in a bill of lading (/) . 
 
 As between a freighter of cargo and the owner of the ship the latter 
 is liable for losses really attributable to the negligence of the master, 
 although immediately caused by the perils of the sea [m] . 
 
 The owners of cargo are entitled to recover against the shipowners 
 the value of the cargo under a charter-party which contained the 
 usual exception in case of accident from " perils of the seas," where 
 the cargo had been lost at sea in consequence of the ship stranding 
 after deviating from her proper and usual course in the endeavour to 
 save another ship and cargo in imminent danger from perils of the 
 sea, inasmuch as the exception did not extend to such a case [n] . 
 
 3. Lightning. — Fire. 
 
 From the preceding observations and authorities, it will be 
 obvious that neither the master nor owners can be answerable for a 
 loss happening to the cargo by lightning : but at common law they 
 were answerable for a loss by fire proceeding from any other cause, 
 whether originally commencing in their own ship or communicated to 
 it from another (o) . 
 
 Sect. 503, protects shipowners in certain cases where there is a loss 
 by fire {p) . 
 
 In this clause the master is not mentioned ; and therefore it may 
 be doubtful whether his responsibility is in this case removed by the 
 statute : but the insertion of the word j^re in the modern bill of lading- 
 has certainly removed it. 
 
 (h) Amies Y. Stevens,! Strn. 128; Bull. (m) Grill v. The General Iron Screw 
 
 N. P. p. 69. Sharp v. Grei/, 9 Bhig. 457 ; Collier Co., 35 L. J. C. P. 321 j L. R. 1 
 
 see Bedhead v. Mid. By. Co. L. E. 2 Q. B. C. P. 600. On appeal 37 L. J. C. P. 205 j 
 
 412; 4 Q. B. Ex. Ch. 379. L. R. 3 C. P. 476. 
 
 (^■) Kay v. WJtreler, 36 L. J. C. P. 180 ; {n) Scaramanga v. Stamp, 48 L. J. 
 
 L. R. 2 »;. P. 302. Q. B. 478 j L. R. 4 C. P. D. 316. 
 
 {Jc) The Cliasca, 44 L. J. Ad. 17. j L. R. (o) Forioard v. Pittard, 1 Temi. Rep. 
 
 4 A. & E. 446. K. B. p. 27. Hyde and another v. Trent 
 
 (I) Lloyd V. General Iron Screw Col- and Mersey Navigation Company, 5 Term. 
 
 Her Co., 3 H. & C. 284 ; 33 L. J. Ex. Rep. K. B. p. 389. 
 
 269 ; Grill v. The General Iron Screw Col- (p) See previous enactment 26 Geo. 3, 
 
 Her Co., 35 L. J. C. P. 321; L. R. 1 C. P. c. 86, s. 2 ; Moreiooodv. FollocJc, 1 E. & B, 
 
 600. 743.
 
 334 CAUSES WHICH EXCUSE MASTER AND OWNERS. 
 
 Part IV. 
 
 4. Embezzlement, Robbery^ Sfc. 
 
 Sect. 503 contains a provision protecting the shipowner in certain 
 cases from loss or damage occasioned by reason of any robbery, 
 embezzlement, &c. {a). 
 
 Where in a bill of lading the ^' acts of robbers^' are excepted, these 
 ■words do not apply to thefts without force {b) . 
 
 The plaintiffs shipped diamonds on board the defendants^ vessel 
 under bills of lading, containing the exceptions " thieves, barratry of 
 master and mariners. . . . The shipowner is not to be liable for any 
 damage to any goods whicli is capable of being covered by insurance." 
 One box of the diamonds was stolen during the voyage, but there was 
 no evidence to show whether it was stolen by one of the crew or by a 
 passenger, or by some person from the shore after the vessels arrival 
 in port. At the time of the shipment the diamonds were insured, 
 and the underwriters paid for the loss — Held, first, that the term 
 " thieves " in the exception applied to strangers, and not to persons 
 belonging to the vessel ; secondly, that assuming theft by one of the 
 crew to be *' barratry," the defendants must bring the case within 
 the exception by positive proof, which they had failed to do ; thirdly, 
 that the words " damage to any goods " were confined to cases where 
 the goods receive damage from a peril insured against, but not to 
 cases where there has been, not damage to the goods, but a total 
 abstraction of them (c) . 
 
 5. Neglect, S^c, of Pilots. 
 See sect. 388, ante, p. 159. 
 
 6. Restraint of Princes. 
 
 [" The lestraint of princes and rulers" (d), commonly mentioned 
 in charter-parties as an exception or excuse for the non-performance 
 of the contract on the part of the master, is to be understood of an] 
 
 (a) As to this euactnieut applying where during the said voyage," have been held 
 the shipment is in foreign parts, see Gibbs not to apply at the loading port, but only 
 V. Potter, 10 M. & W. 70. It seems that if during the voyage. Crow v. Folk, 8 Q. B. 
 the ship is an English one it does. The 407. But see Bruce v. Nicolopulo, 11 Ex. 
 former enactment on this subject was 129; 24 L. J. Ex. 321, in which those 
 26 Geo. 3, c. 86, s. 3. words were held to override the whole 
 
 (b) De Bothchild v. Royal Mail S. P. Co. pei'iod of time from the discharge of the 
 7 Ex. 734. outward cargo to the arrival of the ship at 
 
 (c) Taylor v. Liverpool, S(e., Co., 43 her port of ultimate destination. Barker 
 L. J. Q. B. 205 ; L. R. 9 Q. B. 546. v. McAndrew, 84 L. J. C. P. 191 ; 18 C. B. 
 
 {(I) The words "restraint of princes, &c., (>".s.) 759.
 
 6. RESTEAINT OF PRINCES. 335 
 
 [actual, and not of an expected (e) restraint, although tlie expectation Chap. 6. 
 
 may be reasonable and well-grounded, and the master may act upon 
 
 it with fair and honest intentions. This was decided in the follow- 
 ing case : — The British ship Adelpld was chartered for a voyage 
 from London to St. Petersburgh, or as near thereto as she could safely 
 get, there to load a complete cargo of hemp, and of iron for ballast, 
 and proceed therewith to Woolwich and London, and there deliver 
 the same, on being paid freight at certain rates per ton (restraint of 
 princes and rulers during the said voyage always excepted) : thirty 
 running days to be allowed the merchant for loading. Under this 
 contract the ship sailed to Cronstadt (the port of St. Petersburgh), 
 and there took in iron for ballast, and a certain quantity of hemp ; 
 and the master was proceeding with all due diligence to load his full 
 cargo of hemp, by screwing it down in the usual way, when, about 
 the ninth day, a rumour was circulated of an embargo being about to 
 be laid by the Russian government on all British vessels ; and the 
 person who was agent for the British factory at Cronstadt, and agent 
 also to the house at St. Petersburgh, who were the agents to the 
 merchant-charterer of this ship, in consequence of instructions 
 received from the British consul-general at St. Petersburgh, desired 
 the captains of such British vessels as were ready to proceed to sea 
 to do so as soon as possible, as he expected an embargo might take 
 place immediately. In consequence of this, the master gave orders 
 to leave off screwing down hemp, and to fill the ship as fast as 
 possible by hand; and the whole clay was employed in this way, and 
 the ship filled as far as could be done by hand. In the evening the 
 ship sailed, with something more than half the cargo that she could 
 have carried if the hemp had been screwed down : the merchant had 
 a sufficient quantity of hemp for a full cargo lying by the ship^s side 
 in lighters. Many other British vessels sailed the same evening, or 
 the next morning, without full cargoes; some, however, remained, 
 and afterwards completed their lading, and were not detained by the 
 Russian government. No embargo was, in fact, imposed until six 
 weeks after this time : the ship would have completed her loading 
 within that period. The master sailed away without any communi- 
 cation with the defendant's agents at St. Petersburgh, who came to 
 Cronstadt as soon as they had notice of the circumstance, with inten- 
 tion to stop the ship, but arrived too late. The master acted bond 
 fide, and as an honest man, and there Avas reasonable and well- 
 grounded apprehension for his acting as he did. The goods taken on 
 board Avere brought to London, and there delivered to the merchant. 
 The merchant sued the master for not bringing a complete cargo, 
 according to his contract. It was argued that the master was excused] 
 
 (e) In an action by the consignees o£ master of ordinary courage, judgment, and 
 
 cargo for damage to cargo by delay caused experience, will justify delay. Anderson v. 
 
 by an apprehension by the master of perils The Oioners of San Eoman, 42 L. J. Ad. 46; 
 
 arising by reason of war — Held, that an L. E. 3 A. & E. 583; the Express, L. K. 
 
 apprehensionof capture, founded on circum- 3 A. & E. 597. 
 stances calculated ta affect the mind of a
 
 33G CAUSES WHICH EXCUSE >[ASTE1} AND (.(WNERS. 
 
 Part IV. [either by the operation of this clause in the contract,, or hy that 
 general principle of law which requires every siibject, as a matter of 
 public duty, to save the property and persons entrusted to his charge 
 from falling into tlie hands of the enemies o£ his country. 
 
 But the court held, that neither of these grounds furnished an 
 excuse in the particular circumstances of this case.] 
 
 ''It has been contended/' said Lord Ellenborough, *^'that the 
 exception contained in this contract, of ' restraint of princes and 
 rulers during the voyage,' excuses the not taking on board a complete 
 cargo in this case ; but, without considering whether this provision 
 respecting restraint of princes, &c., be at all applicable, by way of 
 excuse for the non-performance of this part of the master's stipulated 
 duty — viz., the taking on board a complete cargo — yet, at any rate, the 
 restraint meant must be an actual and operative restraint, and not a 
 merely expected and contingent one, as this at most only was. But 
 it has been further argued by the defendant's counsel, that, supposing 
 the master, in respect of bis express contract, not to be otherwise 
 justifiable in regard to the freighter, yet that he is so at any rate, on 
 the ground of his paramount duty to the state, which required him to 
 save the property and crew under his charge from the impending 
 peril of an instantly-expected embargo ; and that, in every private 
 contract, however express in its terms, there is always a reservation 
 to be implied for the performance of a public duty, in which the 
 interest of the state is materially involved. That no contract can 
 properly be carried into effect which was originally made contrary to 
 the provisions of law, or which, being made consistently with the rules 
 of law at the time, has become illegal in virtue of some subsequent 
 law, are propositions which admit of no doubt. Neither can it be 
 questioned, that if, from a change in the political relations and 
 circumstances of this country, witb reference to any other contracts 
 which Avere fairly and lawfully made at the time, they have become 
 incapable of being any longer carried into effect without derogating 
 from the clear, public duty which a British subject owes to his sove- 
 reign and the state of which he is a member; the non-performance 
 of a contract in a state so circumstanced is not only excusable, but a 
 matter of peremptory duty — an obligation on the part of the subject. 
 But in order to found this new public duty, which is to supersede the 
 performance of his former private one, it is necessary that an actual 
 change in the political relations of the two countries should have; 
 taken place, and that the danger to resiilt to the public interest of 
 his own country, from an observance of the contract, should be clear, 
 immediate, and certain : in short, such a state of circumstances must 
 be shown to exist, as that the contract is no longer capable of being- 
 performed by him, without criminal compromise of his pviblic duty. 
 Can anything of this kind be said, with truth, to exist in the present 
 case ? No actual change in the political relations of Great Britain 
 and Russia had then taken place. The danger to result from remain- 
 ing at Cronstadt was neither immediate nor certain ; in point of fact, 
 it attached only at the distance of many weeks afterwards ; and no 
 one can venture to suggest, even in argument, that the loading in
 
 G. EESTRAIXT OF PRINCES. 337 
 
 question might not have been completed without any criminal com- Chap. 6. 
 
 promise of public duty. Indeed, to allow a man to withdraw liimself 
 
 from the performance of a distinct positive contract, upon the 
 ground of some speculative inconvenience, suggested as likely to 
 result from such performance to the general interests of the state^ 
 would afford great encouragement to disingenions subtleties and 
 refinements upon subjects of this kind, and would render ali reliance 
 upon the solemn stipulation of parties in commercial matters pre- 
 carious and insecure, and which encouragement this court would most 
 reluctantly lend its assistance to administer. For the reasons already 
 given, snch an argument has no foundation to rest upon in the 
 present case. Therefore, neither upon this ground, any more than 
 npon the others already considered, is the plaintiff precluded from a 
 right to recover ^^ [a). 
 
 Where neither shipowner nor charterer is ready because they are 
 both prevented by a superior power, neither can maintain any action 
 for the unreadiness of the other [b) , 
 
 (a) Atkinson v. Sitchie, 10 East, 530. dant (the shipowner) did not go to the port 
 
 See ante, p. 307; and Fole v. Cefcowlch, 7 of loading, as it was blockaded, and it «as 
 
 C. B. (n.s.) 430; 31 L. J. C. P. 102. held to be a good plea, and was within the 
 
 Duncan V . Koster, 41 L. J. Ad. 57; L. E. meaning of the exception "restraint of 
 
 3 A. & E. 394; 4 P. C. 171. See Qeipelw princes." 
 
 Smith, 41 L. J. Q. B. 153 ; L. H. 7 Q. B. (i) Cunningham v. Dunn, 48 L. J. Q. B. 
 
 404 ; where it was pleaded that the defen- &c., 62,
 
 338 LIMITATION OF ItESrONSIBILITr. 
 
 Part IV. 
 
 CHAPTER YII. 
 
 or the limitation of the responsibility of the owners and 
 master; and herein^ 
 
 Sect. 1. Of Foreign Laws and Ordinances on this Suhject, p. 338. 
 
 2. Former Enactments, now repealed, p. 339. 
 
 3. I'lie Trovisions in Merchant Shipping Acts, p. 341. 
 
 4. Liahility of Master and Seaman in iliose capacities, p. 312. 
 
 1. Of Foreign Laws and Ordinances on this Subject, 
 
 [In considering the instances in which the owners are answerable 
 to the merchant ior the loss or damage of his goods, I have hitherto 
 forborne to mention the Hmits of their responsibility_, and have 
 treated them as being responsible np to the fidl extent of the amonnt 
 of snch loss or damage — and so, both by the civil law and 1)y the 
 common laAV of England, they formerly were ; for, althongh it was 
 decided (a), at a time when the ransom of ships taken by a foreign 
 enemy, was not contrary to the laws of the realm (Z»), that such 
 ransom could not be made at a price exceeding the value of the ship 
 and cargo (and the loss of the value of the cargo would fall upon the 
 merchants), yet, until the responsibility of the shipowner for the loss 
 or damage of goods was limited by statute, it was never doubted but 
 that such responsibility was co-extensive with the loss, and the 
 statutes, which have been made to narrow it, are founded upon that 
 supposition. 
 
 The ancient laws of Oleron, Wisbuy, and the Hanse Towns, con- 
 tain no proviso on this subject. Nor is any alteration of the rule of 
 the civil law noticed by Roccus (c), although A'innius, an earlier 
 author, says that, by the law of Holland, the owners are not charge- 
 able beyond the value of the ship and things that are in it (r/) ; in 
 conformity to which principle the French ordinance declares, ^^That] 
 
 (rt) Helley v. Grant, cited 1 Term Rep. was a Neapolitan, was first piiWishod in 
 
 K. B.,p. 79. 1655.] 
 
 (J) 22 Geo. 3, c. 25, proliibited ransom. {d) [In Peckiuni, p. 155, puHishcd in 
 
 See now 27 & 28 Vict. c. 25, s. 45, ante, 1647, the author cites Grotius, lib. 3, In- 
 
 p. 20. trodiic. ad Jurisp. Bat. c. 1, and lib. 2, De 
 
 (c) ["The Notabilia" of this author, who Jure Belli et Pacis, c. 11, n. 13.]
 
 2. EErEALED ENACTMENIS. 339 
 
 [the owners of sliips shall be answerable for the acts of the master, but Chap. 7. 
 shall be discharged therefrom upon relinquishing their ship and the 
 freight ^^ (e). A similar provision is contained in the ordinance of 
 Rotterdam, made in 1721, which declares, ''^That the owners shall 
 not be answerable for any act of the master done without their order, 
 any further than their part of the ship amounts to •" (/) ; and by 
 other articles of the same ordinance it appears that each part-owner 
 is liable only for the value of his own share {g) . Valin, in his com- 
 mentary on the French ordinance (h), informs us that the same 
 regulations are also established at Hamburgh (?).] 
 
 2. Former Enactments, noiv repealed. 
 
 [The earliest provision of the British legislature on this subject 
 was a statute (7 Geo. 2, c. 15) made a few years after the date of the 
 ordinance of Rotterdam, and which was passed in consequence of a 
 petition presented to the House of Commons by several merchants 
 and other persons, owners of ships belonging to the port of 
 London {k), setting forth the alarm of the petitioners at the event 
 of a late action, in which it was determined that the owners were 
 answerable for the valuable merchandise embezzled by the master. 
 The foundation of this limitation is mentioned in the preamble of 
 the statute, which states, ''That it is of the greatest consequence and 
 importance to this kingdom to promote the increase of the number 
 of ships and vessels, and to prevent any discouragement to merchants 
 and others from being interested and concerned therein ; and that it 
 has been held, that in many cases owners of ships or vessels are 
 answerable for goods and merchandise shipped or put on board the 
 same, although the said goods and merchandise, after the same have 
 been so put on board, should be made away with by the masters or 
 mariners of the said sliips or vessels, without the knowledge or privity 
 of the owner or owners, by means whereof merchants and others are 
 greatly discouraged from adventuring their fortunes as owners of 
 ships or vessels, which will necessarily tend to the prejudice of the 
 trade and navigation of this kingdom."^ It is, therefore, "for ascer- 
 taining and settling how far owners of ships and vessels shall be] 
 
 (e) [LIv. 2, tit. 8, Des Proprietaires, art. (A) Tom. 1, p. 569. 
 
 2. Tlie encouragement of niaritiiiie com- (i) An extract from the Ordinance of 
 
 nierce, especially among the noblesse, was Hamburgh, dated 1731, is given in 2 
 
 one of the principal objects of this ordi- Magens, but the article containing this 
 
 nance. See same book, and tit. art. 1, and provision is not noticed. 
 
 Valin's Preface to that title. See also the {k) See Commons' Journals for the 3'ear 
 
 Code de Com. art. 216.] 1733, p. 277. The case referred to by the 
 
 (/) Art. 167; 2 Magens, 107. petition appears clearly to be that of 
 
 {q) Arts. 126, 127; 2 Magens, 101, 102. Boucher v. Laioson, citwl ante, p. 86. 
 
 z 2
 
 340 
 
 LIMITATION OF EESrOXSIBIIJTY. 
 
 Part IV. [answerable for any gold, silver, diamonds, jewels, precious stones, or 
 other goods or merchandises, which shall be made away with by the 
 masters or mariners, without the privity of the owners thereof," 
 enacted,] among other things, that in certain cases a shipowner 
 should not be liable "further than the value of the ship or vessel, 
 with all their appurtenances, and the full ainount of the freight due, 
 or to grow due, for and during the voyage wherein such embezzle- 
 ment, secreting, or making away Avitli as aforesaid, or other mal- 
 versation of the master or mariners_, shall be made, committed, or 
 done." 
 
 [By this statute, the legal responsibility of the master was left 
 unaltered in all the cases therein enumerated, and tliat of the owners 
 also in the case of a robbery committed by persons not belonging to 
 the ship. But where a ship in the river Thames was forcibly 
 plundered of dollars during the night by a gang of robbers, in con- 
 sequence of information given by one of the mariners of the ship, who 
 afterwards shared the booty, the responsibility of the owners was held 
 not to extend beyond the value of the ship and freight by virtue of 
 this statute («) . 
 
 Immediately after the decision of that case, and in consequence of 
 the danger to which the facts that were diselcsed in it showed the 
 owners to be exposed, another petition was presented to the House of 
 Commons {b), on behalf of several owners of ships belonging to 
 London and other parts ; and in compliance therewith, another 
 statute was passed (c), fixing the same limits to the responsibility of 
 the owners in the several cases mentioned in the preceding statute, 
 and also in the case of robbery, " although the master or mariners 
 shall not be in anywise concerned in or privy to such robbery, 
 embezzlement, secreting, or making away with." This statute also 
 contains the same provisions as the preceding Act, for equal distribu- 
 tion and discovery by bill in equity, and also for remedy against the 
 master and mariners, and entirely took away the responsibility of the 
 owners in the case of loss or damage by fire {(l) .] 
 
 By 53 Geo. 3, c. 159, this limitation of the responsibility of the 
 owners was still further extended. 
 
 It may be useful to refer to some cases decided under the repealed 
 enactments. 
 
 [The value of the ship was calculated at the time of the loss or 
 damage [e] . In calculating the value of the freight, money actually 
 paid in advance was included (/); but the value was only the amount] 
 
 (a) Suiton v. Mitchell, 1 Term l^op. ^V. Bob. 101. Bohree v. Schroder, 2 
 
 p. 18. My. & Cr. 489. Lei/cester v. Loijan, 26 
 
 (h) See Commons' Journals for llie year L. J. Ch. 306. African Steam Shipping 
 
 1786, V. 296. ' Co. V. Swanzei/, 25 L. J. Ch. 870. The 
 
 (c) 26 Geo. 3, e. 86, ?. 1. Cli/cle, Swab. 23. 
 
 (rf) See rt«fe, p. 333. (/) [Wilson v. Dickson and others, 2 
 
 (e) If the ship foundered at the time of E. & A. 2.1 Where the sale was necessary 
 a collision, her owners were liable to the the 53 Geo 3,c. 159, did not apply. At kin- 
 extent of the ship's value immediately son v. Stephens, 7 Ex. 567. The Volant, 
 before the collision. Brown v. Wilkinson^ Jur. 540; 1 W. Rob. 389. 
 15 M. & W. 391. The Mart/ Caroline, 3
 
 3. MEECHAXT SHIPPING ACTS, AS TO. 341 
 
 rtliat the ship woukl have earned if she had completed her voyage, and Chap. 7. 
 not the amount estimated at the commencement of the voyage, if 
 diminished by jettison or other losses (^).] 
 
 The Acts did not extend to lighters and gabbets (h). 
 
 The fishing stores of a ship employed in the usual manner in the 
 Greenland fishery belonging to the owners of the ship had to be 
 valued as a part of the ship and her appurtenances under these 
 statutes {i). So also the chronometer of a whaler {k). 
 
 It was decided by the Court of Admiralty (/) and by the Court of 
 Queen's Bench, that the unsuccessful party in an action or cause of 
 damage was liable for the costs of recovering compensation, although 
 the value of the ship and freight should be insufficient to defray 
 them {m). 
 
 3. The Provisions in the Merchant Shipping Acts. 
 
 Part IX of the 17 & 18 Yiet. c. 104, contains certain provisions 
 respecting the liability of shipowners, and applies to the whole of 
 H. M. dominions {n) . 
 
 By sect. 503, shipowners are not liable for damage done, without Loss by fire— 
 their actual fault or privity, by fire happening on board their ships to ™iuabie°f 
 goods, &c., put on board, nor for the robbery, &c., of certain valu- 
 ables put on board their ships unless the true nature and value of 
 them are declared in writing. 
 
 By the 25 & 26 Vict. c. 63, s. 54, the amount for which owners Limitation of 
 of ships, whether British or foreign, are liable, when there is no fault JJl^igh ship. 
 or privity on their part, for loss of life (o), personal injury, or damage owiiers liable 
 or loss to goods, is limited {p) . By sect. 506 of 17 & 18 Vict, c 104, in eevtaiu 
 where there are losses on distinct occasions, they are liable to the ^^^^^^ 
 same extent on each occasion as if no other loss had arisen. 
 
 Sects. 507—515 give a mode of procedure which may be adopted 
 by the Board of Trade in case of loss of life or personal injury. 
 
 Sect. 514 provides that certain proceedings may be taken in case 
 of several claims being made or apprehended against the owner of a 
 ship in respect of loss of life, personal injury, or loss or damage to 
 ship's boats or goods. 
 
 By sect. 515, all sums of money paid for or on account of any loss 
 
 (j) [Cadiian v. Jllealun), 1 Bing. 465.] (n) As to its applying to foreign ships 
 
 See Dohree v. Schroder, 6 Sim. 291. whe:i not specially meutioned, see Cope v. 
 
 (A) Runter Sf Co. v. M'Gowan, 1 Bligb, Doherty, 27 L. J. Cli. 700; 4 K. & J. 367. 
 
 573. General Screw Collier Co. v. Sckurmanns, 
 
 (i) Gale V. L'uirie, 5 B. & C, 156; 1 29 L. J. Cli. 877. See sect, 516, 2'ost, 
 
 Hagg. Ad. Rep. 109. p. 342. 
 
 (/.-) Lancjton v. Rorton, 6 Jurist, 910. (o) The 9 & 10 Vict. c. 93, is Lord 
 
 ll) The Dundee, 1 Hagg. 109. The Campbell's Act for compensating the faun- 
 
 Volant, 1 W, Rob. 389. Tlie John Dunn, lies of persons killed by accidents. 
 
 6 Rob. 159. {p) See the Amalia, 1 Moore P. C. C. 
 
 0«) Exp. Uaijne, 1 Gale k Dav. 374; 1 (>-.s.) 471 ; 32 L. J. Ad. 191. 
 Q. B. 982.
 
 342 LIMITATIOX or EESPOXSIBILITY. 
 
 Part IV. or damage^ iu respect of wliicli the liability of owucrs is limited by 
 Part IX. of 17 & 18 Vict. c. 104_, and all costs incurred in relation 
 thereto may be brought into account amongst part-owners of the 
 same ship in the same manner as money disbursed for the use 
 thereof. 
 
 4. Liability of Master and Seaman in those capacities. 
 
 By sect. 516, nothing in Part IX. of this Act shall be con- 
 strued to extend to any British ship, not being a recognised British 
 ship within the meaning of the Act, or to lessen or take away any 
 liability to which any master or seaman, being owner or part-owner 
 of the ship to which he belongs, is subject in his capacity of master 
 or seaman.
 
 GENERAL DUTIES OF MEKCHAXTS. 343 
 
 Chap. 8. 
 
 CHAPTER VIII. 
 
 OF THE GENEKAL DUTIES OF THE MERCHANT; AND HEREIN'^ 
 
 Sect. 1. Sow he is bound to use the Shi}), p. 343. 
 
 2. Compensation to he made ly him for not supply inff Carr/o, p. 344. 
 
 3. Of Frimage and Averac/e, p. 345. 
 
 1. Hoiv he is bound to use the Ship. 
 
 [The general duties oi: the mercliant (those only excepted Avhicli 
 relate to the payment of freight and of gross average^ and Avliich will 
 form the subject of distinct chapters) are comprised in a very narrow 
 compass. The hirer ot anything must use it in a lawful manner, and 
 according to the purpose for which it was let. The merchant must 
 lade no prohibited or uncustomed goods, by which the ship may be 
 subject to a detention or forfeiture (a);] nor any goods Avhich he 
 knows, and the master does not know, and has not reasonably the 
 means of knowing, to be of a dano:erous nature, or of a nature, if not 
 carefully stowed, to be injurious to other goods ; without giving notice 
 of their nature to the master, so that he may exercise his option of 
 accepting or refusing them, and if accepted, stow them where they 
 will not endanger the rest of the cargo (b). 
 
 [In general, even in the case of aftreightraent by charter-party, the 
 command of the ship is reserved to the owners or the master 
 appointed by them, and therefore the merchant has not the power 
 or opportunity of detaining the ship beyond the stipulated time, or 
 employing it in any other than the stipulated service ; but by the 
 charter-parties under which ships are (c) let to the East India 
 Company, the command and disposal of the ship are reserved to the 
 company, and the master, although appointed by the owners, is 
 bound to obey the orders of the company at home, and of their 
 factors and servants abroad; and it is (c) always stipulated, that 
 nothing shall be paid by the company for freight or demurrage, 
 unless the ship retu.rns home in safety {d). Yet, in a case where 
 the company detained a ship so long in India that she became unfit 
 for the voyage home, and was disposed of there, so that, by reason of 
 the particular stipulations, the owners could sustain no action at law 
 upon the contract, a court of equity ordered the company to make al 
 
 (a) Roccus, not. 85. Dig. 19, 2, Gl, 1. Tarrant v. Barnes, 11 C. B. (n.s.) 555. 
 
 rrench Ordinance, liv. 3, tit. 3, Fret. See ante. p. 287. 
 
 art. 0. (r) This, it must be remembered, is taken 
 
 {b) Brass v. Ilailland, 6 E. &. E. 470; from the 5th ed. of this work published in 
 
 26 L. J. Q. B. 49. Hutchinson v. Guion, 1827. 
 
 5 C. B. (>-.g.) 149 ; 28 L. J. C. P. 63. {d) See the clauses cited in Hotham v. 
 
 :East India Co., Doug. 272.
 
 344 GEXEEAL DUTIES OF MERCHANTS. 
 
 Part IV. [proper allowance for the actual and probable earnings and tlie value 
 
 of the ship (a) . So where a ship hired by the company^ to be employed 
 
 according to the then usual terms of their charter-parties, in trade 
 and warfare, was sent npon a service of observation and discovery, to 
 explore the passage to the eastward of the Isle of Bauca, and there 
 struck on a rock, and Avas lost, and the owners brought an action 
 against the company for thus exposing the ship to danger in a service 
 not warranted by the charter-party w'ithout their knowledge or 
 consent, Lord Kenyon, before whom the cause was tried, declared 
 himself to be of opinion, that the action was proper in point of 
 general principle, but the plaintiffs failed in their suit, because it 
 appeared that the company's intention to employ the ship in this 
 service was, before her departure from England, made known to the 
 person who managed the ship on behalf of the owners, and not 
 objected to on their part {b).'] 
 
 As to allowing ships to be employed in the military or naval 
 service of any foreign state at war vnih any friendly state, see the 
 Foreign Enlistment Act, 1870; the International, 4:0 L. J. Ad. 1; 
 L. R. 3 A. & E. 321 ; the Gauntlet, 40 L J. Ad. 34 ; L. R. 3 A. & E. 
 319; 41 L. J. Ad. 65; L. R 4 P. & C. 184; where a prize taken 
 by a French man-of-war Avas towed by an Englisti vessel. 
 
 As to forfeiture to the Crown of the ships of pirates, see Teleyrafo, 
 40 L. J. Ad. 18; L. R. 3 P. C. 6/3. 
 
 2. Compensation to be made by him for not siqjjjlt/inf/ Carr/o. 
 
 [Some of the ancient maritime codes and more modern foreign 
 ordmances (r) have hxed the payment to be made by the merchant 
 who, bavins; taken a ship to freight, declines to lade her in pursuance 
 of his agreement, or Avho, before the commencement or during the 
 course of the voyage, withdraws his goods from the ship, or, having 
 hired a ship to go to a distant port, and engaged to furnish a cargo 
 homeward, fails to do so, w'hereby the ship is forced to return empty; 
 and have decided that in some instances the whole, in others a moiety 
 of the sum that would have become due as freight shall be paid as 
 compensation to the owners.] 
 
 In England, the damages recoverable in an action for not loading 
 pursuant to charter-party, and wholly neglecting so to do, are the 
 amount of freight which the ship would have earned if she had 
 been loaded, mi/nis the expense ot earning that freight, and any 
 sum the ship has actually earned elsewhere {U). 
 
 (a) Edwin v. East India Co. ,2 Veil. 210. in trade and in warfore, and ou any otlicr 
 
 {b) \_Lewiii \. India Co., Peake's cases at service whatsoever.] 
 Nisi Prius, p. 241. It was an action upon (e) [Ordin. of the Hansc Towns, art. 11. 
 
 the case, and the plaintiffs were nonsuited; French Ordin. liv. 3, tit. 3, Fret, arts. 3, 6, 
 
 they afterwards brought another action in 8, and 9, and A'alin thereon. Guidon, 
 
 the Court of Common Pleas, which was cli. 9, art. 11. Code de Commerce, ai*ts. 
 
 tried before Lord Eldon, at the Sittings 288, 291.] 
 
 after Hilary Term, 1800, and Avere again {d) Smithy. 3I'Gture,3 H. & N. 55Ij 
 
 nonsuited on the same ground. The terms 2/ L. J. Ex, 465. Wilson v. Hicks, 26 
 
 of the charter-parties were afterwards L. J. Ex. 42. 
 altered, and the ships hired to be employed
 
 o. ITvlMAGE AND AVEEAGE. 
 
 3. Of Prhnaf/e and Average. 
 
 [We liavc seen by a copy of the bill of lading [e], that the master 
 undertakes to deliver the goods npon the payment of freight with 
 primage and average accustomed. 
 
 The word primage denotes a small payment to the master for his 
 care and trouble^ which he is to receive to his own use, unless he has 
 otherwise agreed with his owners (/) . This payment appears to be 
 of very ancient date, and to be variously regulated in different voyages 
 and trades. In the "Guidon/^ it is called "/« contribution des chausses 
 on pot de vin du maitre." It is sometimes called the master's hat- 
 money.] 
 
 It has been held that primage is primarily payable to the master, 
 and that he may maintain an action for it although the freight has 
 been separately adjusted. If, howeverj by the contract between the 
 owner and the master, the master is not to receive primage, he can 
 maintain no action for it ; and cases may also arise when a contract 
 between the owner and shipper, which excludes primage, may be 
 brought to the knowledge of the master, and prevent him from having 
 any right to claim it {y) . 
 
 [The word average in this place denotes several petty charges, 
 Avhicli are to be borne partly by the ship and partly by the cargo — 
 such as the expense of towage, beaconage, &c. Some of the foreign 
 ordinances specify the particulars that fall under this head, and the 
 mode of distributing the charge (/<), but with us they depend entirely 
 upon usage, and an attempt to enumerate them would afford neither 
 instruction nor entertainment. 
 
 This and the preceding article of primage are often computed for a 
 specific sum, or a certain per-centage on the freight.] 
 
 (e) Chap. 4 of this P.ivt, sect, 2, traciccl with the sbipowncv to receive a 
 (/) Scott V. Miller, 5 Scott, 13, sum certain "in lieu of all cabin and other 
 (ff) Best V. Saunders, 1 M. & M. 208. allowances." Ibid. Sec also CJwrleton v. 
 Where the bill of lading expressed that the Coteswortli, R. & Mood. 175. 
 goods were to be delivered to the consignee, {h) [French Ordinance, liv. U, tit. 7, 
 "he paying freight for the same as per Avaries, arts. 8, 9, and Ordin of Stock- 
 charter-party, with primage and average holm, tit. Average, art. 1; 2 Magens, 277. 
 accustomed," it was held that the master Ordin. of Wisbuy, arts. 44, 56, 59, 60. 
 was entitled to receive primage from the Guidon, ch. 5, arts. 12 — 19 ; and Cleirac 
 ■■onsignec, although the contract between on the 24tli art. of the laws of Oleron. 
 tht shipowner and the agents of the con- Eut by the Code de Com., art. 406, the 
 signee (there being no charter-party) was expense of towage, &c., is to be boriic by 
 for 3^. per ton freight, and did not notice the ship alone.] 
 primage; and although the master con- 
 
 Chap. 8.
 
 346 TAYMENT OF FEEIGIIT. 
 
 Part IV. 
 
 CHAPTER IX. 
 
 OF PAYMENT OF IREIGHT j AND HEREIN^ 
 
 HeCX, 1. In ihe ahseuce of Express Stipulations, Freiyld is not due until the Voyage lias 
 been performed, p. 316. 
 
 2. Modes of Calculation. Of an agreed Sum for the Toi/age. Of Tonnage-freight. 
 
 Of Time-freight, p. 351. 
 
 3. Time and Manner of its Fagment. Of the Words "On Pagment of Freight" 
 
 in Bills of Lading, and of their Fffect loJiere Belicerg has been made without 
 Pagment, p. 3ol'. 
 
 4. When a Contract to pag Freight mag be implied against the Peceicer of Goods 
 
 under tlie usual Bill of Lading, p. 357. 
 
 5. Fquivalent Peconqieiise in the Nature of Freight, to lohich {Freight not having 
 
 been earned) the Shipowner is in some Cases entitled, p. 361. 
 
 6. Freight on Illegal Yogages, p. 362. 
 
 7. Whether Damaged Goods are exempt from Freight, or mag be abandoned for 
 
 it, p. 363, 
 
 8. Of Freight lohen part of the Goods onlg have been brought to the Place of their 
 
 Uestinafion, and of Freight pro rata itiueris poracti, p. 368. 
 'J. When the Bight to Freight commences, p. 391. 
 
 10. Of Entire, Divided, and Intermediate Voyages. Freight hvw payable, p. 392. 
 
 11. Of the Jurisdiction exercised bg the Court pf Ad.miraltg respecting the Freight 
 
 of Goods condemned as Prize, p. 398. 
 
 1. In the absence of E.vpress Stipulations, Freight is not due until the 
 Voya(/e has been 2Jerforme(l. 
 
 [In treating of tlic paymcut of tlic freight, tlic priucipal duty of 
 the mci'cliant, I shall consider_, first, the case in which the entire 
 freight is to be paid according to the terms of the contract ; and, 
 secondly, those cases in "which a part only of the stipulated sum may 
 be claimed. 
 
 The contract for the conveyance of merchandise is in its nature an 
 cntii"e contract, and unless it be completely performed by the de- 
 livery («) of the goods at the place of destination, the merchant will 
 in general derive no benelit from the time and labour expended in a 
 partial conveyance, and consequently be subject to no payment what- 
 ever, although the ship may have been hired by the month or week.] 
 
 («) Brown v. Tanner, 37 L. J. Cli. 923. v. Hilton, 38 L. J. C. P. 93, -nherc, l\v tlie 
 
 As a rule, freight is earned by the carriage bill of lading, freight was to be paid within 
 
 and arrival of the goods at the destined three days after the annval of the ship, and 
 
 port ready to be deli\ercd to the merchant. before the delivery of any portion of the 
 
 The cargo ex Argos, 42 L. .T. Ad. 49; goods, and after the arrival and before the 
 
 L. I\. 3 A. & E. 568; 5 P. C. 134, expiration of the three days the ship sunk 
 
 where the Ciirgo could uot be delivered by and the goods were destroyed, and it was 
 
 reason of its being dangerous. >See Duthie held that no freight was payable.
 
 1. WHEX DUE. 347 
 
 [The cases in wliicli a partial payment maybe elaimcd^ arc exceptions Chap. 9. 
 to tlic general •riilcj founded upon principles of equity aud justice, as • 
 
 applicable to particular circumstances {b). On the other liand^ an 
 interruption of the regular course of the voyage happening without 
 the fault of the owner does not deprive him of his freight, if the 
 ship afterwards proceed with the cargo to the place of destination, 
 as in the case of capture and recapture (c). 
 
 In this country it is not unusual to pay for goods shipped for the 
 East and West Indies at the time of shipment ; but this payment, 
 although in common parlance called freight, is not in strictness pro- 
 perly so denominated, that word denoting the price rather of actual 
 carriage than of receiving goods to be carried.] 
 
 Accordingly, in the case of -Blakey v. Dickson (d) , Lord Eldon and 
 the Court of Common Pleas, admitting that an action might be 
 brought for money agreed to be paid for receiving goods on shipboard, 
 in order to be transported, decided that such money could not be sued 
 for or recovered by the name of freight. 
 
 [Some time after this determination an action was brought upon a 
 supposed agreement of the nature here alluded to, the plaintiff 
 alleging, that in consideration of his undertaking to receive on board 
 his ship certain goods belonging to the defendant, to be carried 
 therein from London to Lisbon, the defendant promised to pay him a 
 certain sum of money on the shipment of the goods. The bills of 
 lading were the only evidence offered by the plaintiff at the trial of 
 the cause to prove his allegation. These imported, in the usual way, 
 that the goods were to be delivered at Lisbon ; but the clause respect- 
 ing the payment of freight, in some of them ran thus — " frei(jht for 
 the said goods being paid in London ;" and in others thus — " the 
 shippers paying freight for the said goods in London/' The ship 
 was lost on the voyage. Lord Ellenborough, before whom the cause 
 was tried, was of opinion that these words meant no more than that 
 the freight should be paid in London instead of Lisbon, and did not 
 dispense with the performance of the voyage j and added, that if the 
 shipper had paid the freight upon the shipment of the goods, he might 
 have recovered it back again. The plaintiff, therefore, failed in his 
 suit (e). 
 
 The case turned wholly on the bill of lading. There was no indica- 
 tion of an intent, that if the freight were not earned, the money 
 might not be recovered back. But in a cause since decided in the 
 Common Pleas, the bill of lading containing the words "freight for' 
 the said goods being paid,''' the broker who freighted the ship proved] 
 
 (i) When goods arc carried under a for Frofeciioiiof Commerciallnferests, <^c. 
 
 charter-party the terms of payment dei)eiul 43 L. J. C. P. 218; The Kathleen, 43 
 
 on the language made use of, see Cro::ler v. L. J. A. 39; L. K. 4 A. & E. 260, where 
 
 Smith, 1 Scott, X. II. 338. ship and carso were abandoned by crew. 
 
 (c) The Race Horse, 3 Rob. Ad. \\. {d) 2 Boa'^ S: Pull. 321. 
 
 101 : per CiiAMBEE, J., and Lord Alvaxlet (e) JIashiler v. Bullcr, 1 Camp. 81. Sec 
 
 in Seal? v. Thompson, 3 Bos. & Pull. 420 j)o*^, p. 319, where money paid in advance 
 
 and 431 ; Cli. .J. Etre in Curling v. Long, on account of freight cannot be recovered 
 
 1 Bos. & Pull. 137. Sec yelson v. Ass. back.
 
 348 PAYMENT OF FEEIGHT. 
 
 Part IV. [that tlie contract for tlic coiivcyauce of the goods was verbal^ and 
 
 that he told the defendant that the price of the freight of goods upon 
 
 a voyage from Loudon to the Cape was ^l., paid in London, or 71. 
 paid at the Cape : the defendant preferred the contract at 5/. per ton. 
 Soon after tlie vessel had sailed the broker called on the defendant for 
 payment, who answered, he would call and pay it on the following 
 ^Monday. The ship was lost. Gibbs, C. J., left it to the jury to 
 consider, whether the agreement intended merely to change the 
 place where the freight should be payable, in case any freight sliould 
 be earned, or whether, in lieu of a contract for freight, it was intended 
 that this sum should be payable, at all events, after shipping the 
 goods ; and the jury found that the meaning of the agreement Avas, 
 that the money should be paid, at all events, ui)on the delivery of the 
 goods on board the ship at London. The court refused to disturb 
 the verdict; and Gidbs, C. J., said, "^ Here is an indication not only 
 of the place where the money was to be paid, but also of the time 
 when it was to become due, which was not the case in Mashiter v. 
 Biil/er ;" and added, " It signifies not what name is given to the 
 money. The defendant is misled by the ambiguity of the phrase 
 freifjht. There is no doubt but that a man may agree to pay 
 money on the delivery of the goods on board the ship, call it what 
 yon wiir^ (c) .] 
 
 But although, by the policy of the law, freight strictly so called, 
 does not become due until the voyage has been performed, it is 
 competent to the parties to a charter-party to covenant by express 
 stipulations in such manner as to control the general operation of 
 law. If the charter-party be silent, the law will demand a per- 
 formance of the voyage, for no freight can be due until the voyage is 
 completed. But if the parties choose to stipulate by express words, 
 or by words not express, but sufliciently intelligible to that end, that 
 a part of the Ireight should be paid absolutely by anticipation, and 
 not depend upon the performance of the voyage, they are at liberty 
 to do so [b) . Such stipulations are by no means uncommon, for the 
 owner of a ship frequently has no agent at the port of loading, but 
 the freighter always has, and therefore naturally enough, stipulates 
 to advance money to the owner, which, upon the ship^s safe arrival, 
 is as naturally in practice deducted from the freight (c) . 
 
 [Whether money advanced by the merchant is to be considered as a 
 loan to be reimbursed by the owner, or as part payment of the 
 freight, not dependent upon the performance of the voyage, must 
 depend upon the terms of the written instrument upon the construc- 
 tion of which the question arises. A charter-party contained a 
 covenant, that " 120/. should be paid upon freight of the outward 
 cargo to Maranham, and as much cash as might be found necessary 
 for the vessel's disbursements in Maranham, to be advanced by the] 
 
 (ff) [Andreio v. Moorliov.se, aiul Clark v. (i) Per Lord EllekboeouGH in De 
 
 Dniisiiia, there cited, 5 Taunt. 435, and 1 Silcale v. Kendall, 4 M. & S. 37, posf,34:d. 
 Marsh. 122.] (f) Mansfield v. Mail land, 4 B. & A. 
 
 585.
 
 1. WHEN DUE, 349 
 
 [merchant, his agents or assigns, to the master when required, free Chap. 9. 
 from interest and commission, at the current exchauge of the place, 
 and the residue of such frei(/ht to he paid on delivery of the home^Yard 
 cargo in Liverpool/^ The ship having been lost by capture, the 
 Court of King^s Bench decided that the merchant was not entitled to 
 recover back, under this charter-party, money advanced by him for 
 the vessel's disbursement in Maranham ; the words above printed 
 in italics clearly intimating that the advance was not to be by "o ay of 
 loan, but in part payment of freight, of which the remainder only was 
 to abide the usual risk which the law casts upon the earning of 
 freight for the conveyance of the cargo to the place of its des- 
 tination {d). But where the charter-party contained a covenant for 
 payment of freight, one-half in cash on unloading and right delivery 
 of the cargo, and the remainder by bill on London, at four months' 
 date, and a memorandum " the captain to be supplied with cash for 
 the ship's use," in pursuance of which the master drew a bill, which 
 was accepted and paid, upon the charterers for cash so supplied, this 
 was decided to be a loan to be reimbursed by the owner (<?).] "The 
 case of De Silvale v. Kendall," said Lord Tenterden on this occa- 
 sion, " turned upon the particular words of the instrument, which 
 was studiously framed, so as to make the freighter lose the money 
 advanced by him, unless the owner reaped the benefit by the 
 ship's coming home safe. The present charter-party, is in a very 
 different form. It is undoubtedly competent for the owner to make 
 such a stipulation as that in De ISilva/e v. Kendall ; but if he does so, 
 it is his duty to take care that it is inserted in clear and explicit 
 words in the charter-party that the money advanced shall be an 
 advance in part payment of the freight.'^ 
 
 By charter-party for a voyage from London to Calcutta and back, 
 it was agreed that the freighter, if he thought proper, might hire the 
 vessel for an intermediate voyage, within certain limits, for not less 
 than six months ; and, in that event, the master should refit the 
 vessel for such a voyage. The complement of men was to be kept 
 np, and all necessaries provided ; the frieghter on his part agreeing 
 to pay the owner for such voyage the sum of 1/. a ton per month on 
 the ship's tonnage, to i^ay four months of such hire in advance ; and 
 at the end of six months two further month's pay, and so in every 
 succeeding two months ; and the balance due at the termination of 
 such hiring in cash or approved bills. It was further stipulated, that 
 if the vessel should be lost or captured, the freight by time should be 
 payable up to the period when she should be lost or captured, or last 
 heard of. The freighter took the vessel for the intermediate voyage, 
 in the course of Avhieh, and before the expiration of the four months 
 for which payment had been made in advance, she was lost. He 
 then claimed to have the money so advanced returned to him, and 
 contended, that the last-mentioned clause, by which it was stipulated 
 
 {d) Be Sihale v. Kendall, 4 M. & S. 37. Bi/rne v. Schiller, 40 L. J. Ex. 177j L. P.. 
 Payment m advance on account of freight 6 Ex. 20, 319. 
 cannot be recovered if the voyage fail, {e) 3Iansfielclx. Mai/land, 4:B, & A. 581,
 
 350 TAY^rEXT OF FT^EIGTIT, 
 
 Part IV. ^^^^ 't^6 freight sliould be payaMe only to tlie time at wliicli the 
 
 vessel might be lost, Avas inconsistcut -with the owuer^s title to the 
 
 whole four months' freight. But the court rejected the claim, and 
 Lord Texterdex, C. J., said "The law is thus laid down by 
 Saunders, C. J., in 2 Shower, 283 : ^Advance money paid before, if 
 in part of freight, and named so in the charter-party, although the 
 ship be lost before it come to a delivering port, yet wages are due 
 according to the proportion of the freight paid before — for the 
 freighters cannot have their money.' This is the ground of the doc- 
 trine which was acted upon in De Silvale v. Kendall, that money paid 
 in advance of freight cannot be recovered back''' («). 
 
 In a case, where a charter-party contained the following clause, 
 " cash for ship's disbursements to be advanced to the extent of 300/., 
 free of interest, but subject to insurance, and 21. 10s. per cent, com- 
 mission," Lord Campbell, with whom the other learned judges of 
 the Court of Queen's Bench concurred, said, " This mention of in- 
 surance, seems to me to stamp the transaction indelibly as a payment 
 on account of freight, and not a mere loan, for if the advance was to 
 be insured, it must be an advance of ireight which is insurable, 
 whereas a loan is not. There is nothing necessarily inconsistent in 
 the other clause — 'the freight to be paid on unloading and right 
 delivery of the cargo,' which may refer to the payment of the 
 residue of the h'eight not already advanced" {b). 
 
 The stipulation in a charter-party that freight shall be paid 
 " subject to insurance," means that freight shall be paid subject to 
 an allowance to the charterer of the premiums paid for insurance of 
 the advance made in part ])ayment of the freight (c) . 
 Dciitli &c., of With respect to living animals, whether men or cattle, which may 
 living animals die during the voyage, without any fault or neglect of the persons 
 "^^'*^°^°^"°'^' belonging to the ship, it is said (d), that if there be no express agree- 
 ment whether the freight is to be paid for the lading or for the 
 transporting them, freight shall be paid as well for the dead as for the 
 living. If the agreement be to pay freight for the lading them, their 
 death certainly cannot deprive the owners of the freight; if the 
 agreement be to pay freight for transporting them, then no freight 
 is due for those that die on the passage, because, as to them, the 
 contract is not performed. These distinctions are found in the civil 
 law, and adopted by all the writers on this subject {e). 
 
 [If a pregnant woman be delivered during the voyage, no freight is 
 due for the infant (/).] 
 Wiere ship I^ ^ ^^^ip ^^^ ^'^^^ ^^^ transferred in the course of a voyage the 
 
 sold. transferee is entitled to the freight {g) . 
 
 (a) Saniiders v. Drew, 3 B. & Ad. 445. (e) Mofaf v. East India Co., 10 East, 
 
 See Allison v. Bristol Marine Ins. Co., 468. 
 
 43 L. J. C. P. 311 ; L. E. 9 C. P. 559. (/) [Eoccus, not. 79. :Molloy, book 2, 
 
 (i) Eicks V. Shield, 7 Ad. & E. 633 ; 26 p. 4, sect. 8.] 
 
 L. J. Q. B. 203. (g) Keith v. Bvrroios, 46 L. J. C. P. 457, 
 
 (e) Jackson v. Isaacson, 3 H. & N. 405 ; 801 ; L. E. 1. C. P. D. 722 ; 2. C. P. D. 163 ; 
 
 27 L. J. Ex. 502. 2 App. Cu. 636. If a ship-owner mortgages 
 
 (d) Dig. 14, 2, 10. Eoccus, uot. 76 — 78. his ship dni-ing a voyage having goods of his 
 
 MoUoy, book 2, ch. 4. own on board and remains in possession of
 
 2. ^rODES OP CALCULATION, &C. 351 
 
 If there is a constructive total loss of a ship during a voyage it is Chap. 9. 
 impossible for its owners to earn the chartered freight (A). ^, 7~ . ^ 
 
 total loss. 
 
 2. Modes of Calculation. Of a7i agreed Sum for the Voyage. 
 Of Tonnage-freight. Of Time-freight. 
 
 [When goods are sent in a general ship, in pursuance of the second 
 species of contract before mentioned, the amount of the freight is 
 either settled by the agreement of the parties, or by the usage of the 
 trade. In the case of a charter-party, if the stipulated payment is a 
 gross sum for an entire ship, or an entire part of a ship, for the whole 
 voyage, the gross sum will be payable, although the merchant have not 
 fully laden the ship ; and if a certain sum be stipulated for every ton, or 
 other portion of the ship^s capacity, for the whole voyage, the payment 
 must be according to the number of tons, &c., which the ship is proved 
 capable of containing, without regard to the quantity actually put 
 on board by the merchant [i), or to the number of tons' burthen 
 mentioned in the description of the ship {k). On the other hand, if 
 the merchant has stipulated to pay a certain sum per cask or bale of 
 goods, the payment mast be, in the first place, according to the 
 number of casks or bales shipped and delivered (/) ; and if he has 
 covenanted to pay freight on skins by the pound, nett weight at the 
 King^s beam, freight is due on the outside skins, in which the 
 packages are contained {m) . And where, again, he has covenanted to 
 furnish a complete lading, or a specific number of casks or bales, 
 and failed to do so, he must make good the loss which the owners 
 have sustained by his failure, to be settled, in case of disagreement, 
 by a jury, who will take all the circumstances into their considera- 
 tion, and make a due allowance to the merchant for the profit which 
 the master may have made by bringing the goods of other persons, if 
 any have been brought {n) . In all such cases (o), the proper course is 
 to estimate the freight by means of an average, so as to take neither] 
 
 the sliip the mortgagee is not entitled to the words " one hundred lasts of wheat, in 
 
 fi-eight from the mortgagor in respect of such two thousand and ninety-two bags." It was 
 
 goods, S. C. ; see Swannv. Barber, 'kO L. J. not proved that the wheat had been measured, 
 
 Ex. 253 ; L. R. 5 Ex. D. 130. but evidence was given that the Dantzic 
 
 (A) RanMn v. Potter, 42 L. J. C. P. 169. measure was larger than the English, and 
 
 (^') [Roecus, not. 72, 75.] that the wheat was bought by the latter. 
 
 {k) Hunter v. Frij, 2 B. & A. 421, ante, The freight was to be a certain sum per last; 
 
 p. 180. and it w.as held that the specihed number 
 
 (/) [Roecus, not. 73, 75.] Where a cargo of bags nrast be considered as between the 
 
 of wheat, on which freight was payable per parties to contain one hundred lasts, as 
 
 quarter, had increased from 2664 quarters mentioned in the bill of lading. Moltoi/ v. 
 
 at the loading port, to 2785 quarters at the Living, 4 Taunt. 102.] 
 
 port of delivery, it was held by the Court of {m) Moorsom v. Paye, 4 Canipb. 103. See 
 
 Exchequer, Martix, B., diss., that freight ante, p. 194. 
 
 was only payable on the nmnber of quarters {n) Puller v. Stanifortk, 11 East, 232. 
 
 at the time of shipment. Gibson v. Slurge, See ante, pp. 196, 207. 
 
 24 L. .J. Ex. 21 ; 10 Ex. 622. BzicMe v. (o) Capper v. Foster, 3 Bing. N. C. 938 ; 
 
 Knoop,^i} L. J. Ex.223. Spaight x.Farn- 5 Scott, 129; Irtinrj v. Clegg, 1 Bing. N. 
 
 worth, 49 L. J. Q. B. 346. [A bill of lading, C. 53. 
 dated at Dantzic, contained in the margin
 
 352 PAYMENT Oi'^ FKEIGHT. 
 
 Part IV. [tlie greatest possible freight nor the least; and such an average is the 
 
 proper measure of damages («) . And in a cause Avhere the charterer 
 
 of a ship, for a voyage to Tobago and back, covenanted to load and 
 despatcli her in time to join the convoy that should be appointed to 
 sail from the West Indies on the 1st of August, it was held that he 
 was liable for not having loaded and despatched her by the 22nd of 
 July, tiie day the West India convoy passed the island of Tobago, 
 although he offered to load her with a complete cargo if she would 
 stop a few days longer ; and a verdict was obtained for the amount 
 of the dead freight claimed [b] . 
 
 In an action against the merchant for not loading and despatching 
 the ship, according to the memorandum for charter, wherein she was 
 described as " The Swedish ship or vessel called the Maria," he 
 cannot set up as a defence that she was in point of fact a British, and 
 not a Swedish ship [c). And where the payment is to be made by 
 cask or bale, the merchant must pay for what has been brought, 
 although the master engaged to bring a full cargo and refused to do 
 so — the proper remedy for such refusal being an action against the 
 master upon his co^•enant, as hath been before observed {d) . "Where 
 a ship, hired to go beyond sea to fetch home a cargo, for which a 
 certain rate per ton was to be paid (nothing being payable for the 
 outward voyage), was forced to return in ballast, the merchant's 
 factor having no goods to put on board, the Court of Chancery 
 decreed payment of the freight (e). 
 
 If an entire ship be hired, and the burthen thereof expressed in 
 the charter-party, and the merchant covenant to pay a certain sum 
 for every ton, &c., of goods which he shall lade on board (/), but do 
 not covenant to furnish a complete lading, the owners can only 
 demand payment for the quantity of goods actaally shipped [y). And 
 where the merchant covenanted to provide a full and complete cargo, 
 consisting of copper, tallow, and hides, or other goods, on which 
 separate rates of freight were to be paid, it was held, that having 
 supplied her with as large a quantity of tallow and hides as she chose 
 to take on board, he was not bound to provide any copper, although 
 from the want of it the ship was obliged to keep in her ballast, and 
 did not make so advantageous a freight as she otherwise would liave 
 done (A).] 
 
 That where, by the terms of the charter-party, the freight is 
 made payable according to the quantity of goods, the merchant must 
 
 (a) Thomas v. Clarke, 2 Stark. 450. upon the precise biirthen mentioned in the 
 
 Cockhvrn v. Alexander, 6 C. B. 791, ante, charter-party, unless the misrepresentation 
 
 p. 196. has been fraudulent. Thomas v. Clarke, 2 
 
 (Zi) Thompson v. Inglis, 3 Campb. 428. Stark. 452.] 
 
 As to pleading a counter-claim since the {g) [Ladg James v. I^asf India Co., 
 
 Judicature Acts, see Jiulicature Act, 1875; coram Kextox, Ch. J., at Guildhall, Sitt. 
 
 Order 19 ; Arch. Pract. by Prentice, p. 267. p. Mich. Term, 1789 ; Pioccus, not. 75.] 
 
 (c) Sensse v. Meyers, 3 Campb. 475. (h) [^Moorsom v. Page, 4 Campb. 103.] 
 
 {d) Ritchie v. Atkinson, 10 East, 295. Irving v. Clegg, 1 Bing. N. C. 53. See p. 
 
 See ante, p. 200. 194. Soitthamjyton Steam Collier Co. v. 
 
 (e) Westland v. Bolinson, cited 2 Yeru. Clarke, 40 L. J. Ex. 8; L. E. 4 Ex. 73; 
 
 212. G Ex. 53. 
 
 (/) [The merchant-freighter cannot insist
 
 i 
 
 2. MODKS OF OALCULATIONj &C. 353 
 
 pay for so much as shall be delivered, appears from the following Chap. 9. 
 case : — 
 
 The ship True Briton was chartered for a voyage from Shields to 
 Hamburgh. The master engaged to take a full cargo of coals, and to 
 proceed to Hamburgh ; and on his arrival, to deliver the same to the 
 merchant or his assigns, at such convenient place or places where the 
 ship and cargo might safely come ; and for the delivery, to be at the 
 rate of one working day per keel of coals. The merchant engaged to 
 load the cargo, and also to receive it at Hamburgh within the time 
 limited, and to pay in full for the freight of the ship for the voyage, at 
 the rate of 20/. per keel, on delivery of the cargo, with two third parts 
 of the pilotage and port-charges. Under this charter-party the mer- 
 chant loaded seventeen keels of coals, with which the ship proceeded 
 towards Hamburgh, and arrived at Cuxhaven, so near to Hamburgh 
 that the voyage might have been completed in the course of the day ; 
 but the master, being ordered by the commander of his Majesty's 
 ships on that station to proceed no further, because the French forces 
 were approaching Hamburgh, sent notice of his arrival to the mer- 
 chant's correspondents at Hamburgh, who desired him to sail as far 
 as Gluckstadt, where they would send him lighters. The master 
 accordingly sailed to Gluckstadt, and there delivered seven keels and 
 one chaldron of coals into the lighters that were sent. The delivery 
 was at the rate of one keel per working day. The ship stayed long 
 enough to have delivered the whole quantity, if lighters had been sent 
 to receive it. On the ninth day, the master returned to Cuxhaven, by 
 order of the British consul and of the commander of his Majesty's 
 ships — the French having entered Hamburgh; and shortly after- 
 wards, by the order of the same persons, sailed away with the residue 
 of his cargo, and brought it back to Shields, having remained in the 
 whole fifteen days only from his first arrival in Cuxhaven Roads, being 
 less than the time stipulated in the charter-party. This, however, 
 contained the usual exceptions of perils of the seas and restraint of 
 princes and rulers ; and the master having by this restraint been 
 prevented from delivering his whole cargo, was held entitled to the 
 rateable freight for the quantity delivered, and also to the two-third 
 parts of the pilotage and port-charges (l) . 
 
 [In all the instances before mentioned, the owners take upon them- 
 selves the chance of the long or short duration of the voyage. But 
 if the merchant engage to pay a certain sum for every month, week, 
 or other portion of the voyage, in this case the risk of the duration 
 falls upon the merchant ; and if no time be fixed for the commence- 
 ment of the computation, it will begin from the day on Avliich the 
 ship breaks ground and commences the voyage, and will continue 
 during the whole course of the voyage, and during all unavoidable 
 delays not occasioned by the act or neglect of the owners or master^ 
 or by such circumstances as work a suspension of the contract for a] 
 
 (t) Christi/ V. Sow, 1 Taunt. 300. 
 2 A
 
 354 pay:\[i:xt of peeight. 
 
 Part IV. [particular period (a) . Thus the freight -svill be payable for the time 
 — consumed in necessary repairs during the voyage^ if it do not appear 
 
 that the ship was insufficient at the outset^ or that there was any 
 improper delay in repairing her {b) . So, in the case of a ship hired 
 for a voyage to any port or ports in St. Domingo and back to London, 
 which, having discharged part of her cargo at one port in that island^ 
 was peremptorily ordered by the supercargo to proceed to another^ 
 then under blockade by General Christophe^ by one of whose cruisers 
 she was taken on the way, and detained for some weeks, during which 
 time the remainder of the cargo was confiscated; the ship being after- 
 wards liberated, and having brought home a cargo, Lord Ellex- 
 BOROUGH thought, " that as the ship was taken in proceeding to a 
 port by order of the supercargo, the voyage was never discontinued, 
 and the freighters were answerable for the subsequent detention, in 
 the same manner as if it had arisen from contrary winds or from 
 embargo;'^ and the owner recovered the monthly freight for the 
 period of detention (c) . 
 
 In this case of the payment of freight, as in other mercantile 
 contracts, a month is to be understood of a calendary not a lunar 
 month (c?).] 
 
 3. Time and Manner of its Payment. Of the loords ''On Payment of 
 Frei(jht," in Bills of Lading, and of their Effect where Delivery 
 has been made without Payment. 
 
 [The time and manner of payment of freight are frequently regu- 
 lated by express stipulations in a charter-party, and when that is 
 done, the payment must be accordiug to the agreement. If there be 
 no express stipulation, we have already seen that the master is not 
 bound to part with the goods until his freight is paid ; and where, by 
 the regulations of the revenue, the goods are to be landed and put 
 into the King's warehouse, if the duties are not paid, the master may 
 enter them in his own name, and thereby preserve his lien {e) . 
 
 It is often provided in charter-parties, that the goods shall be 
 delivered agreeably to bills of lading to be signed by the master ; and 
 the master, upon receiving the goods, signs bills of lading for delivery 
 on payment of freight, or with words of similar import, giving him a] 
 
 (a) See the judgment of Heath, J., in and bill of lading freight, on consignee at 
 
 JBeale v. Thompson, 3 B. & P. 405. port of loading agreeing the amount, has 
 
 {h) \^Haveloc'lc v. Geddex, 10 East, 555. been held to mean if the parties meet and 
 
 JRipley V. Scaife, 5 B. & C. 167.] Si le settle the amount, but that the bill of lading 
 
 maitre est coiitraint de faire radoiiher son freight was payable on delivery of the cargo, 
 
 raisseau pendant le voiiagelecliargeur, sera though no such meeting and settlement 
 
 tenu d'aftendre ou de payer le fret entier. at the port of loading had taken place. 
 
 Ordon. de la Marine, liv. 3, tit. 3, s. 11 ; Santos v. Brice, 30 L. J. Ex. 108. 
 Code de Commerce, art. 296. (p) Alsager v. St. Katharine's DocJc Co., 
 
 (c) Moorsom v. Greaves, 2 Campb. 627. 1± M. & W. 794. See, ante, p. 240, the 
 
 {d) Jolly V. Toung, 1 Esp. X. P. C. 186. provisions in 25 & 26 Vict. c. 63, as to a 
 
 Simpson v. 3Iargetson, 11 Q. B. 23. A shipowner landing goods and preserving his 
 
 clause providing that hills should be given lien over same, 
 for the difference between the charter-party
 
 3. TUIB AND MANNER OF TAYMENT. 355 
 
 [riglit to refuse to make delivery to the person designated by tlie bill Chap. 9. 
 
 of lading, without payment of the freight. And as it has sometimes 
 
 liappened that the master has not insisted upon the exercise of this 
 right, it has been much questioned whether the merchant-charterer 
 was answerable for the freight : and it has been decided that he is 
 answerable. 
 
 The earliest case on this point came originally before Lord Kenyon 
 at Guildhall, and he was of opinion that the merchant was not 
 answerable; but the Court of King's Bench being afterwards of a 
 different opinion, the cause was tried a second time, and the merchant 
 was compelled to pay (/). 
 
 The next case upon this subject occurred about ten years after- 
 wards. It was an action for freight upon a charter-party, wherein 
 the defendant stipulated to pay the freight on delivery of the cargo 
 according to the bill of lading. The form of the bill of lading is not 
 mentioned in the report, but it was probably in the usual form. It 
 was certainly intended that the freight should be paid by the con- 
 signee; he being indebted to the defendant in more than that ^ 
 amount. Part of the freight was paid abroad, but ior part of it — viz., 
 500/. — the master took a bill drawn by the consignee upon the mer- 
 chant, bu-t not accepted by him, and he sued upon the charter-party 
 for this part of the freight. Now, had it been his duty to receive 
 payment of the freight before he parted with his cargo, he would have 
 taken this bill at his peril, and he could never afterwards have resorted 
 to the defendant upon the charter-party : but, upon a case reserved, 
 the Court of King's Bench thoaght it very clear that he was warranted 
 in delivering the cargo as he did, and that the defendant was liable to 
 the action {g). 
 
 In another case, which was before the Court of Common Pleas, 
 there was a charter-party, and a bill of lading in the usual form, and 
 the court held that the master Avas not bound at his peril to insist 
 upon his freight at the time of delivering the goods ; but that if ho 
 delivered the goods, and could not afterwards get the freight from 
 the consignee, he might sue the merchant for it npon the charter- 
 party {h). 
 
 In the subsequent case of Shepard v. de Bernales (?"), the three 
 former were very much considered, and the decision of the Court of 
 King's Beucli was conformable to them. Lord EllExVborough, in 
 delivering the judgment of the court, stated the question to be, 
 whether this clause was introduced for the merchant's security, and 
 made it incumbent on the master, at his peril, to look to the consignee 
 under the bill of lading for payment of the freight, in which case he 
 would have no right to deliver to the merchant's agent without first 
 receiving the freight, and a delivery without payment of it would not] 
 
 (/) Penrose v. Wilks, Sit. after Hilary 257, at Nisi Prias, where the bill was 
 Term, 1790. accepted by a third person. 
 
 iff) {Tapley v. Martens, 8 Term. Rep. in (//) Chrishj v. Row, 1 Taunt. 300. See 
 
 B. R. 451.] The same point was ruled by ante, p. 313. 
 GiBBS, C. J , in Marsh v. Fedder, 4 Campb. (») 13 East, 365. 
 
 3 A 3
 
 356 
 
 PAYMENT OF FT^ETOHT. 
 
 Part IV. [be "a right and true delivery;'' or whether it was introduced for the 
 master's benefit only, and merely to give him the option, if he should 
 think fit, to insist upon receiving the freight abroad, before he would 
 deliver the goods ; in Avhich case he might waive the benefit o£ this 
 provision in his favour, and might deliver them without first receiving 
 payment, and would not be thereby precluded from having resort to 
 the merchant afterwards : and the court held the latter to be the true 
 construction of the contract. The former cases were considered as 
 proving, that a clause of this kind does not in general cast upon the 
 master the duty of obtaining, at his own peril, the freight from the 
 consignee, but that if he cannot get it from him, he may insist upon 
 having it from the charterer.] 
 
 In the case of Domett v. Bechford [a), there was no charter-party, 
 and the bill of lading was in the usual form. The captain having 
 delivered the goods to the consignees without receiving the freight, 
 the shipo\^'ners brought their action against the defendant, the con- 
 signor, to recover it. It was contended for the defendant, that the 
 plaintiffs, having undertaken by the bill of lading to *^ deliver to the 
 consignees, they innjing freight," were bound to Avithhold the goods 
 from the consignees until the freight was paid; and that having 
 delivered them without having insisted on payment, they had no 
 claim on the consignor. But Lord Dexman at the trial, and the 
 Court of King's Bench on motion, were of opinion that the defen- 
 dant, the owner of the goods, and on whose account they were 
 shipped, was 2)rimd facie liable to pay freight ; that the clause in the 
 bill of lading being introduced merely for the benefit of the master 
 and shipowner, did not make it compulsory on the latter to withhold 
 the delivery of the goods until payment of freight by the consignee ; 
 and, consequently, that the owner of the goods was not discharged 
 from his liability by the neglect of the shipowner to obtain payment 
 from the consignee. "The law," said Baron Parke {b), "will imply 
 from the fact, that the goods were laden on a ship to be conveyed 
 from Jamaica to London, a contract by the owner of those goods to 
 pay for the carriage. The only difterence between the present case 
 and SJiepard v. de Bernales is, that in the latter there was an express 
 contract by charter-party.'" 
 
 The cases of Tctpley v. Martens and Marsh v. Pedder, in which the 
 master, having taken a bill of exchange for the freight, sued, after its 
 dishonour, the owner of the goods, must not be understood as trench- 
 ing upon the general principle established in several cases, that if a 
 creditor entitled to immediate payment voluntarily and for his own 
 convenience take a bill of exchange on a third person for his debt, he 
 must abide the hazard of such security (c) . In Tapley w Martens, 
 Avhere the bill was drawn upon the merchant, but not accepted by 
 him. Lord Kexyon seemed disposed to concede, that if the master 
 
 (a) 5 B. & Ad. 521. (e) Everett v. Collins, 2 Campb. 515; 
 
 {b) At that time one of the judges of the Smith v. Ferrard, 7 B. & C. 19 ; Rohinson 
 court of King's Bench. v. Read, 9 B. & C. 449.
 
 4. WHEN IMPLIED AGAINST KEOEIVEE OE GOODS. 357 
 
 had taken it for his owu aecommoflatioiij it Avould have altered the Chap. 9. 
 
 case. In Marsh v. Pedder, Gibbs, C. J.^ expressly says, ^'If the party 
 
 having- the offer of cash, merely for his own accommodation prefers a 
 bill of exchange, npou that he must seek his remedy. Here it is not 
 stated, nor is it to be supposed, that any oflFer to pay the whole of the 
 freight in cash was ever made to him;" and this doctrine was expressly 
 acted upon in the recent case of Strong v. Hart [d) . The master and 
 part-owner of the ship Atlantic, having carried a cargo from St. John^s, 
 Newfoundland, to Bilboa, and delivered it there to the consignees 
 under a bill of lading making the cargo deliverable to the consignor 
 or his assigns, he or they paying freight for the same, took a bill for 
 the freight on the agent of the consignees, and on its dishonour sued 
 the consignor. No direct evidence was given to show whether the 
 master demanded payment in cash and took the bill, because he 
 could not obtain such payment, or preferred taking the bill as more 
 convenient. Lord Texterden told the jury, that if they thought the 
 master took the bill voluntarily and for his own convenience, without 
 insisting upon payment in cash, they were to find for the defendants ; 
 but if they thought the master took the bill because he could not 
 obtain payment in cash, to find for the plaintiffs. 
 
 The court, on a motion for a new trial, approved of this direction. 
 
 Before 17 & 18 Vict. c. 104, s. 191, the master, having no lien on 
 the freight for his wages, had no right as against his owners to receive 
 it, but only as their servant (e) . 
 
 Payment to the absolute owner in discharge of his lien for freight 
 is available against a sub-charterer, with whom the merchant may 
 have contracted for their carriage, and the owner in such case can 
 only claim the rate of freight agreed upon between himself and the 
 charterer (/), 
 
 Where by the terms of a charter-party the shipo^vner stipulated 
 for the highest freight which he could prove to have been paid for 
 ships on the same voyage, Avhen the vessel passed Elsinore, it was held 
 that proof of the highest freight previous to action brought was not a 
 condition precedent to suing for it, and that the words " he could 
 provc/^ meant '' he might be able to prove " (g) . 
 
 4. IF/ten a Contract to pay Freight may be implied against the Receiver 
 of Goods wider the usual Bill of Lading. 
 
 The receipt of goods carried by a general ship under the usual bill of 
 lading (by which it is expressed that they are to be delivered to the 
 consignee or his assigns, he or they paying freight for them), is evi- 
 
 (d) 6 B. & C. 160. Sec Aiidei'so)i v. AfHnsoH v. CotesiooHh, 3 B. & C, 647. As 
 Eilliex, 21 L. J. C. P. 150, in which the to the master's lien for his wages under the 
 owners were held to he hound pro tanto hy ahove Act, see post, Part V., Chap. 4. 
 
 a payment at the request of the master, who (/) Mitchenson v. Begbie, 9 Bing. 190. 
 
 was a co-owner of part of the freight, to a {g) Gether v. Capper, 24 L. J. C. P. 69; 
 
 third person. aff. in error, 25 L. J. C. P. 260 j 18 C. B, 
 
 (e) Smith v. Phmmer, 1 B. & A. 575; 366. 
 
 I
 
 358 PAYMENT OF FREIGHT. 
 
 Part IV. clence of a contract by the person so receiving tliem to pay the freight 
 ■~~" clue upon tliem («) . There is no assignment of contract^ no shifting of 
 liability. The receiver of the goods is an original contractor to pay 
 the freight of them. A man Avho obtains goods as the holder of an 
 instrument, by -^-hich his right to claim them is conditioned on the 
 payment by him of the charges to Avhicli they are therein stated to be 
 subject, cannot complain if his own conduct be thought to raise an 
 inference that he undertook to pay such charges, lu like manner, a 
 course of dealing between parties may be evidence of such an engage- 
 ment {d). But no such contract can be implied against a consignee, 
 ■who, not having himself received the goods, has by endorsing the bill 
 of lading, enabled his endorsee to receive them (c) . " The consignee," 
 said Baron Parke (f/), " is prima facie the owner of the goods; but if 
 he be not^ he is not liable simpliciter as consignee, except on a ncAV 
 contract to pay the freight. That is evidenced in ordinary eases by 
 the bill of lading. I accede to the decision in Wilson v. Kymer, 
 that the same eA'idence may be deduced from the previous dealings 
 between the parties. If the goods have always been delivered on 
 payment of freight by the defendant, that is evidence that in the par- 
 ticular case he agreed to pay it." " It is not," said Lord Tenterden 
 (in another case) (e), " the mere receipt of goods by a person who is 
 not the owner of them, with the knowledge that they are subject to 
 a charge, that will bind him to pay it ; but if such a person receive 
 the goods, in pursuance of the bill of lading, making the payment of 
 such charge a condition precedent to their delivery, or if he have 
 notice from the master that if he takes the goods he must take them 
 subject to the charge, he will be liable for it." And in one case (/), 
 the receipt of goods under a bill of lading by which the goods were 
 made deliverable to consignees by name, but not to their assigns, was 
 considered by Lord Tenterden to be evidence of an agreement by 
 persons, not the consignees^ who received them, to pay the freight due 
 upon them {g) . 
 
 (a) Bougal v. Kemble, 3 Biiig. 383 ; recover the balance alleged to be due for 
 
 Roberts V. Holt, 2 Show. 443; 3Ioorsom v. freight, — Held, that the 60*. per ton agreed 
 
 Kymer, 2 M. & S. 303. See Weguelin v. to be treated as freight in the plaintiff's 
 
 Cellier, 42 L. J. Ch. 758; L. K. 6 H. L. Ca. contract for sale was unpaid purchase 
 
 286, where shipowner reserved freight on money, in respect of which he had a lien on 
 
 bills of lading of his own goods. The the goods before delivery ; that the defen- 
 
 l)laiutiff shipped goods in his own vessel, to dant's conduct, mider the circumstances, 
 
 be carried on the ship's account, a nominal amounted to an implied contract to dis- 
 
 freight of 1*. per ton being payable under charge the lien, and, therefore, that the 
 
 the bill of lading. He subsequently sold plaintiff was entitled to recover, i^wann v. 
 
 the goods whilst in transit for 65k per ^«/-5e/-, 49 L. J.Es. 253,L. K. 5 Ex.D. 130. 
 500 lbs., "including freight and insurance, (i) Wihon v. Kiinier, 1 M. & S. 157. 
 
 freight to be reckoned at 60s. per ton." (c) Tobin v. Crawford, 5 M. & W. 235. 
 
 After intermediate sales the defendants {d) Colemfin v. Lambert, 5 M. &W. 502 ; 
 
 bought the goods whilst still in transit MoUer v. Fo«h^, 5 E. & B. 955; 25 L. J. 
 
 upon the same terms as to freight. The Q. B. 91; Zwik-henbart v. Henderson, 
 
 ship arrived at the port of discharge, and Ex. 722 ; 23 L. J. Ex. 234. 
 the defendants, having notice of the terms (e) 8caife v. Tobin, 3 B. & Adol. 523. 
 
 of the plaintiff's contract, paid him a (/) Renteria \. Ending, ^l. &, 'M. b\l. 
 
 sum on account of freight at 60*. per ton, {g) In Drew v. Bird, M. & M. 157, Lord 
 
 and thereupon obtained delivery of the Texteedex is reported to have expressed 
 
 goods. In an action by the plaintiff to an opinion at Nisi Prius, that where there
 
 4. WHEX IMPLIED AGAINST RECEIVER OF fiOODS. 359 
 
 [But a person avIio is only an agent for the consignor^ and who is Chap. 9. 
 known to the master to be acting in that character, does not make 
 himself personally answerable for the freight by receiving the goods, 
 although he also enters them in his own name at the Custom-house (h) . 
 In a case Avhere the consignee, known as such to the master, sold the 
 goods before they were landed, and the buyer received them, and 
 entered them in his own name at the Custom-house, it was once held 
 by Lord Kenyon, that the consignee only, and not the buyer, could 
 be sued for the freight (i), and this opinion seems to have been 
 adopted by Lord Stowell in the decision of a cause before him [k) . 
 But the point having been since more maturely considered, it has 
 been decided, that although there be no original privity of contract 
 between the purchasers from consignees and the owner, yet the taking 
 of goods by purchasers under a bill of lading is evidence of a new 
 agreement by them, as the ultimate appointees of the shippers, to pay 
 the freight for the carriage of the goods, the deliv-ery being stipulated 
 with the shippers to be made to the consignees named in the bill of 
 lading or their assigns, he or they paying the freight for the same (/) . 
 And this opinion seems most consonant to sound reason ; for if a 
 person accepts anything which he knows to be subject to a duty or 
 charge, it is rational to conclude that he means to take the duty or 
 charge upon himself; and the law may very well imply a promise to 
 perform what he so takes upon himself {m) . 
 
 But, on the other hand, if the endorsees of a bill of lading obtain 
 goods not under the bill of lading, but under an order signed by the 
 consignees for that purpose, this is not sufficient ground to raise an 
 implied assumpsit on their part to pay the freight, even although the 
 goods be entered at the Custom-house in their name, unless it appear 
 from previous dealings that they were in the habit of receiving 
 goods in the same manner, and paying freight for them and this will 
 then be considered sufficient to raise such an implied promise (n) . And 
 the endorsee of such a bill of lading, making goods deliverable to order 
 or assigns, on payment of freight, although he has paid over the pro- 
 ceeds of the goods to the person who endorsed the bill of lading to 
 him before being called upon to pay the freight, will still be liable 
 for it (o).] 
 
 is no charter-party, and tlic consignee is, (/t) Tlie Theresa Bonita, De Joug. 4 Eob. 
 
 by the terms of the bill, to pay f rcio^ht, the Ad. Rep. 236. 
 
 shipper is not liable. The decision in {I) ^Cock v. Taylor, 13 East, 399,] per 
 
 Domett V. BecJcford has been thought Lord Ellexbobough. Wegener v. Smil/i, 
 
 inconsistent with this opinion, but I do not 15 C. B. 285 ; see Scaife v. Tobiu, 3 
 
 see that it is so, unless it be assumed that B. & Adol. 523, as to general average. And 
 
 the shipper in the case of Brew v. Bird see Sanders v. Vanzeller, 4 Q. B. v88; 
 
 was the owner of the goods. See the obscr- Kemp x. Clark, 12 Q. B. 647 ; Stlndt v. 
 
 rations of Pakke, B., in Domett v. Bcvk- Roberts, 17 L. J. Q. B. 166. See 18 & 19 
 
 ford; and in Sanders v. Vanzeller, A: Q. B. Vict. c. Ill, s. 1, ante, p. 275. 
 
 288. And see Smith's Mercantile Law, (;») See Mitchenson v. Xidioll, 7 Exch. 
 
 p. Z\S.—Mr. Justice Shee. 929. 
 
 iji) [Tr«/-f^v.-Fe?^OH,l East, 507;] Amos (») Wilson v. Kymer, 1 M. & S. 157. 
 
 V. Temperley, 8 M. & W. 798. (o) [_BeU v. Kymer, 5 Taunt. 477 ; 1 
 
 (i) Artaza v. Smallpiece, 1 Esp. N. P. C. Marsh, 146; 3 Campb. 545.] See Moor- 
 
 23, som V. Kymer, 2 M. & S. 333, where there
 
 UGO 
 
 PAY.MEXT OF FEEKIITT — 
 
 Part IV. Ill the case of Sanders v. Vanzeller [a), goods conveyed by a ship 
 
 under a memorandum of charter were made deliverable by bills of 
 
 lading to the consignees, or their ass'tyns, he or they paying freight for 
 the same as per charter-party. The defendant obtained possession 
 of the goods under the bill of lading, and was sued in indebitatus 
 assumpsit for the freight. These facts h.aving been stated in a special 
 verdict, the Court of Queen's Bench decided that tlie acceptance 
 under the bill of lading of the goods by the defendant did not raise, 
 as an inference in law, a contract by him to pay freight, and that 
 although it might be evidence to a jury (stronger or Aveaker according 
 to other circumstances) of such a contract, the court was not at 
 liberty to infer what had not been expressly found [b). 
 
 Where, by a bill of lading, goods were to be delivered to the 
 defendant or his assigns, on his or their paying freight, &c., and he 
 indorsed the bill as folio avs : — " Deliver to Messrs. Watuey and 
 Keene or order, looking to them for all freight, dead freight, and 
 demurrage, without recourse to us.'' 
 W. & K 
 
 payment of freight, as it could not be proved that the master saw and 
 accepted the indorsement (c) . 
 LiJibihty of ^g ^Q ^l^g liability of the consignee and indorsee aa here the property 
 
 where pro'. ' in the goods passes to him, see 18 & 19 Vict. c. Ill, s. 1, ante, p. 275. 
 
 perty iu 
 
 goods pa5s?s. " — ~~~~ 
 
 The goods were delivered to 
 it Avas held that the defendant Avas not discharged from 
 
 was a cbai'ter-party imclev seal. See the 
 observations of Ti>'dai, C. J., on these 
 cases in Vanzeller v. Sanders, 4 Q. B. Kep. 
 278. See Finder v. Wills, 5 Taunt. 612 ; 
 1 Marsh. 249. 
 
 (rt) 2 Gale & Dav. p. 244; aff. in the 
 Exch. Cham. 4. Q. B. 278. 
 
 (6) Judge Stoex (American edition, p. 
 286) has the following observations on these 
 cases: "In both the classes of cases above 
 referred to — viz., those standing upon a 
 charter-party, as well as those standing 
 upon a common bill of lading alone — it 
 seems to have been thought, that if the 
 charterer or consignor was originally liable 
 for the freight, either from an express con- 
 tract to pay it, or from legal liability as 
 the known owner of the goods to pay it, 
 there would arise no auxiliary original con- 
 tract between the consignee and the ship- 
 owner for the freight. If the master were 
 to refuse to deliver the goods without an 
 express promise of a consignee, in such a 
 case, to pay the freight, not choosing to rely 
 solely on the solvency or contract of the 
 charterer or consignor, would there be any 
 legal difficulty in enforciug it ? If not, in 
 what respect does such an express contract 
 differ from that which in the language of 
 
 Chief Justice Best (in Dovjjal v. Kemhle), 
 arises in such case by implication from the 
 receipt of the goods ? The contract of the 
 consignor and consignee are not inconsistent 
 with each other ; each is an oi'igiual con- 
 tract, and has a sufficient consideration to 
 support it {Moorsoiii v. Kymer, 2 M. & S. 
 303). In Barker v. Raven (17 Johns. Kep. 
 234), it was held by the court, that where 
 the goods are owned by the consignor, and 
 shipped on his account and for his benefit, 
 if the master, on a delivery, does not obtain 
 the freight from the consignee, under the 
 common clause iu the bill of lading, he is 
 entitled to recover it from the consignor ; 
 but that it will be otherAvise if the goods were 
 shipped on the account and for the benefit 
 of the consignee. The court also seemed to 
 think it was in all cases the master's duty 
 to endeavour to procure the freight Irom the 
 consignee : if so, would it not be a depar- 
 ture from that duty to deliver the goods 
 without an cxpi'ess or implied promise from 
 the consignee to pay freight ? " And see 
 ante, p. 241, and 18 & 19 Vict. c. Ill, s. 1, 
 ante, p. 275. 
 
 (c) Lewis v. M'Eee, 38 L. J. Ex. 62 ; 36 
 L. J. Ex. 6.
 
 J. 
 
 5. EuflVALENT KECOMPE^SE I'Oil. 361 
 
 Chap. 9. 
 
 Equivalent Recompense hi the Nature of Freight, to ivhich {Freight 
 not having been earned) the Shipowner is in some Cases entitled. 
 
 [lu some cases freiglit is to be paid, or rather an equivalent recom- 
 pense made to the owners, although the goods have not been deli- 
 vered at the place of destination, and so the contract for conveyance 
 is not strictly performed. Thus, if part of tlie cargo be thrown over- 
 board for the necessary preservation of the ship and the remainder of 
 the goods, and the ship afterwards reach the place of destination {d), 
 the value of this part is to be answered to the merchant by way of 
 general average, and the value of the freight thereof alloAved to the 
 owner in the manner that will be explained hereafter. So if the 
 master be compelled by necessity to sell a part of. the cargo for 
 victuals or repairs, the owners must pay to the merchant the price 
 which the goods would have fetched at the place of destination, and, 
 therefore, are allowed to charge the merchant with the money that 
 would have been due, if they had been conveyed thither (e) . 
 
 The French ordinance also directs the payment of freight in 
 another instance, which I do not find provided for in any other 
 ordinance, or mentioned by any author, except with reference to this 
 particular article of the French ordinance, which is as folloAvs : '' If it 
 happen that commerce be prohibited with the country to which a ship 
 is in the course of sailing [en route), and the ship be obliged to return 
 with its lading, there shall be due only the freight outward, although 
 the ship be hired out and home" (/). This article is also repeated in 
 the Code dc Commerce. The commentators on this article agree that 
 the freight outward must be paid, if the ship be freighted outward 
 only [g) ;] and Valin says, that nothing can be more just, for this is 
 casus fortuitus proceeding from a vis major, against which neither 
 owner nor merchant has warranted ; it is quite enough that the mer- 
 chant should pay freight for the outward voyage already commenced, 
 so as to make division of the loss between him and the master of the 
 ship (A). 
 
 It seems that, by German law, if a vessel is liable to risk of cap- 
 tm'e, either party may withdraw from the contract of affreightment, 
 but the master is not obliged to part with the cargo or to tranship it, 
 unless distance freight, as well as all other claims of the shipowner 
 
 (c?) Rocciis, not. 89. Frcucli Ordlu. liv. 3, the Freucii, it has been decided in the 
 
 tit. 3, Fret, art. 13. American courts, that where the ship 
 
 (e) French Ordin. liv. 3, tit. 3, Fret, art. arrived at the port of destination, but was 
 
 14. Ordin. of Wisbuy, arts. 35,69; ante, prohibited by the government from hmding 
 
 p. 310. Code de Com. art. 298. lier cargo, and making an entry, the freight 
 
 {f) French Ordin. liv. 3, tit. 3, Fret, of the ^•oyage was earned in the same manner 
 
 art. 15. Code de Com. art. 299. as if the cargo were deliyed. 2Ior<jan v. 
 
 (yO) Valin, torn. 1, p. 657. I'othicr, North America Ins. Co., 4 Dalls. Eep. 455 ; 
 
 Charte-partie, num. 69. Judge Story's note. Amor. edit. 288. 
 
 (/() In conformity with this doctrine of
 
 362 PAYMENT OF FEEiaHT. 
 
 Part IV. f^iicl the contributious due from the cargo for general average, &c., 
 have been paid or secured («) . 
 
 6. Freight on lUeyal Voyages. 
 
 [Freight is the reward which the law entitles a person to recover 
 for bringing goods lawfully upon a legal voyage. If the voyage be 
 illegal by I'cason of the goods being contraband, or for any other 
 cause, freight cannot be recovered. During the late [b] wars, licenses 
 were frequently granted by the British government for voyages and 
 importations which would otherwise have been illegal. The duration 
 of these licenses was usually limited. In general, if the voyage was 
 begun before the expiration of the limited time, though not completed 
 until afterwards, the voyage was considered as legal. But in a case 
 ■where, in consequence of an embargo in a French port, the voyage 
 was not begun until some time after the expiration of the license, it 
 was held that the freight could not be recovered, although by an 
 order of council, the freighter was permitted to land the cargo, npon 
 condition of exporting it again immediately, this permission not 
 being considered to legalize the voyage by implication, nor to have 
 the eflect of a continuation of the license (c) . 
 
 In another case, in an action brought by the master of a foreign 
 ship for the freight of goods imported into this country, it appeared 
 in evidence that on the ship's arrival with the cargo, the merchant 
 entered her at the custom-house, and a delivery of the cargo in his 
 name was commenced by him ; but on the following day the ship and 
 cargo were seized by the revenue officers, on suspicion that the 
 ship was not Prussian biiilt, and therefore not capable, under the 
 Navigation Act {(l), of importing the produce of that country into 
 England. The Treasury, on petition presented on behalf of the 
 master and owners, and with the concurrence of the merchant, 
 ordered the ship to be restored, on condition that the cargo should be 
 landed and warehoused for a limited time for exportation only, and 
 on payment of a sum as satisfaction to the seizing officers. This 
 sum the master paid, and the merchant accepted and exported the 
 cargo. It Avas clear that, supposing the voyage to be illegal, the 
 freight could not l)e recovered, and the conduct of the master was 
 held to be sufficient proof of the illegality, although the ship had not 
 been condemned (e).] 
 
 («) The Express, 41 L. J. Ad. 70, L. K. (c) IMtdler v. Genion, 3 T:mnt. 394.] 
 
 3 A. & E. 507. ^ce Wav.rih v. Morrit;, L. E. 8 Q. B. 202. 
 
 (6) It must be borne in miud that this {d) 12 Car. 2, c. 18, s. 8, uow repealed, 
 
 is taken from the 5tb Ed. of this work (e) BlancTc v. Solly, 8 Tauut. 89, and 
 
 published in 1827. 1 ^' ^o. 531.
 
 7. WHEN CiOODS DAMAGED. 363 
 
 Chap. 9. 
 
 7. Whether Damaged Goods are exempt from Freight, or may be 
 abandoned for it. 
 
 [As it may frequently liappeii that goods brought in specie to the 
 place of destination may be so deteriorated during the course of the 
 voyage as to be of no value to the merchant, it is important to con- 
 sider whether the merchant is bound to pay the freight under such 
 circumstances ; or, to state the question more correctly, whether he is 
 bound to receive tlie goods, or is at liberty to abandon them for the 
 freight. We have already seen, in the case of an East India ship, 
 that the Company (the merchants) were held liable to pay the freight 
 of a quantity of pepper delivered to and received by them, although 
 greatly damaged by a peril of the sea ; and that the owners were not 
 answerable for the expense incurred in endeavouring to remove the 
 injury occasioned by the salt water (/). And in another case, that 
 will be mentioned hereafter, the merchant was held lialjle to pay the 
 freight of tobacco saved from shipwreck, and accepted by him^ 
 although part was so much damaged as to be of no value {g) . 
 
 Upon this question, as to the right of the merchant to abandon his 
 goods when brought to the place of destination, and by so doing to 
 discharge himself from the freight, different doctrines and opinions 
 have prevailed, and there is (h) no judicial decision in our 
 books ; although in some cases between the merchant and his 
 insurer it has been admitted that the freight was payable, notwith- 
 standing the goods were so much damaged that their value fell short 
 of its amount (i) . But it is necessary to distinguish the causes from 
 which the deterioration may have proceeded. If it have proceeded 
 from the fault of the master or mariners, the merchant is entitled to 
 compensation, and may recover it by an action at law against the 
 owners or master ; but if he has received the goods, he cannot insist 
 upon the damage as a defence to an action brought against himself 
 for the freight, even although he has offered to return them (Jc) .] 
 
 (/) Roiham v. Had India Co., Doug. (;) Boijjield v. Brown, 2 Stra. 1065 ; and 
 
 272. 3Iason v. Skv.rry, Park, 160; Marsh. 143. 
 
 {g) Lutwklge v. Gfeij, posi, sect. 8 of (k) \_3IiUs v. Bainhridge, Guildhall, Dec. 
 
 this chapter. 20th, 1804, before Lord Ellenborough, 
 
 (A) This, it must be remembered, is from Ch. J. His lordship intimated, that if the 
 the 5th Ed. of this work published in merchants had refused to receive the cargo 
 1827. A charterer, whose cargo has been on the ground of damage so occasioned, the 
 damaged by the fault of the master and point would admit of some doubt. In such 
 crew, so as npon arrival at the port of dis- a case, the merchant would derive no 
 charge to be worth less than the freight, is benefit whatever from the conveyance, nor 
 not "entitled to excuse himself from pay- would the master have fulfilled his engage- 
 ment of freight by abandoning the cargo to nicnt according to the terms of the bill of 
 the shipowner. Dak in v. Oxleg, 33 L.J. lading: g'ffrtjre, therefore, whether the master 
 C. P. 115. But since the Judicature Acts, could oblige the merchant to pay the 
 in such a ease, in an action for the freight freight ; See Basten \. Butier, 7 East. 479,] 
 the defendant might set off the damages and see Dakin v. Oxlei/, supra. Since the 
 sustaiuedby himuiconse(inenceof thefault Judicature Act, 1875, the defendant may 
 of the master and crew. set up by way of set off or counter-claim 
 
 I
 
 364 TAYMEXT or FEEIGHT. 
 
 Part IV, [And in general, tlic right and true delivery of goods, upon wliicli 
 freight is made payable by the terms of a charter-party, or bill of 
 lading, means only a delivery of the entire quantity of chests or bales; 
 if the goods have been damaged by the fault of the master or crew in 
 the voyage, the remedy for the merchant, avIio has received them, is 
 an action for the damages («) . On the other hand, if the deteriora- 
 tion have proceeded from an intrinsic principle of decay naturally 
 inherent in the commodity itself, ■whether active in e^"ery situation, or 
 only in the confinement and closeness of a ship, the merchant must 
 bear the loss, as well as pay the freight ; for the master and owners 
 are in no fault, nor does their contract contain any insurance or 
 warranty against such an event. xVnd to this point there is a direct 
 authority in the treatise called " The Guidon." The author, having 
 mentioned several cases of abandonment, as between the merchant 
 and the insurer, goes on thus : '^ In like manner, the merchant 
 cannot abandon the goods hereinbefore mentioned — viz., fi'uit, salt, 
 corn, victuals, &c. — to the master of the ship for his freight, if the 
 deterioration has proceeded from natural decay, or from the great 
 diminution of price that takes place at the end of particular seasons^ 
 as in figs, grapes, and herrings, after Easter : or by reason of an over- 
 abundant supply of the market, as in corn, wine, or salt, although in 
 salt a different practice formerly jn'cvailed, which is contrary to 
 reason, if the option has not been reserved by an express clause in 
 the charter-party '''' {b) , 
 
 In the very next article, lioAvever, of the treatise, avc find this 
 doctrine : " If goods con'.ained in casks, as wine, oil, olives, molasses, 
 and others of the like sort, have leaked to such an extent that the 
 casks are empty, or nearly empty, the merchant may abandon them 
 for the freight before they are landed : therefore masters should take 
 care Avhen they receive casks, to see that they be well hooped, and 
 in good condition. It is true, that if, by tempest, the casks have 
 been so pressed that they have throAvn out their bottoms, have been 
 beaten in, and burst, provided there have been no fault in the 
 stowage, the loss shall be an average against the insurers : the 
 master shall lose his freight" (c) . 
 
 From the words of this article it appears very clearly, that, in the 
 opinion of the author, the merchant might abandon articles of this 
 description, although the leakage were not occasioned by perils of 
 the sea. 
 
 In the Avork of Molloy {d), however, we find the following clauses: 
 "If freight be taken for one hundred tons of wine, and twenty of 
 them leak out, so that there is not above eight inches from the bung] 
 
 in answer to an action for tlic freight goods mentioned in the bill of lading. Lave 
 
 the damage done to the goods. not been put on board. 
 
 (a) [Davidson v. Gi(\i/iine, 12 Kast. 381. (b) Guidon, ch. 7, arts. 7, 10. 
 
 See Shields v. Davis, i Campb. 110, and (c) Guidon, ch. 7, art. 11. 
 
 6 Taunt. 65.] See end of last note. Sec (d) [Book 2, ch. 2, sect. 11. The author 
 
 Meyer v. Dresser, 16 C. B. (k.s.) 61Q, as cites Bot/ce v. Cole, Hilary Term, 26 & 27 
 
 to deduction from freight when part of the Car. 2, in K. B. ; but I do not find that 
 
 case reported elsewhere.]
 
 7. ^v^EN (toops da:\[Aged. 365 
 
 [upwards, yet tlie freight becomes clue. One reason is, because from Chap. 9. 
 
 that gauge the King becomes entitled to custom. But if they be 
 
 under eight inches, by some it is conceived to be then in the election 
 of the freighters to fling them up to the master for freiglit, and the 
 merchant is discharged. But most conceive otherwise ; for if it had 
 all leaked out (if there was no fault in the master), there is no reason 
 the ship should lose her freight, for the freight arises from the tonnage 
 taken ; and if the leakage was occasioned through the storm, the 
 same perhaps may come into an average. Besides, in Bordeaux {e), 
 the master stows not the goods, but the particular officers appointed 
 for that purpose, qiwd nota ; perliaps a special convention may alter 
 the case. 
 
 The French ordinance declares : " That the merchant shall not 
 oblige the master to take for his freight goods diminished in price, 
 spoilt, or deteriorated by their own vice or by the perils of the sea^^ (/) . 
 And the very next article is as foUovrs : '' If goods put into casks, as 
 wine, oil, honey, or other liquors, have leaked out to such an extent 
 that the casks are empty, or nearly empty, the merchant may abandon 
 them for the freight. ^^ Valin, in his commentary on this last article, 
 observes, that it is taken from the article of "■ The Guidon,^^ which I 
 have just before quoted. He observes also that by the Consolato del 
 Mare (ch. 202) the contrary is decided ; yet that by another article of 
 the same code (ch. 234) freight is not due for pottery unless it be 
 found entire at the end of the voyage {g) ; and he considers this 
 article of the ordinance to give the right of abandonment to the 
 merchant, in the case of leakage happening as well from the fault of 
 the casks as from the perils of the sea, and to be an exception to the 
 general rule laid down in the article immediately preceding. On the 
 other hand, his countryman Pothier controverts this opinion, and 
 contends that the article of the ordinance is to be confined to the 
 case of leakage occasioned by peril of the sea; in which case he 
 considers the real commodity — viz., the contents of the cask — to be 
 absolutely lost, as much as if they had been washed overboard. '^ This 
 opinion of Valin," says he, ''appears to me to be contrary to 
 principle. It is the fault of the merchant if he has put his goods 
 into bad casks : it is Ms fault if they have leaked out, and have not 
 arrived at the place of destination. He, therefore, ought to pay the 
 freight ; for, according to the principles of the contract of hiring, the 
 hirer who by his own act or fault has not enjoyed the thing let to him 
 ought to pay the hire as if he had enjoyed it. If the letter, who has 
 been prevented from letting to other persons the part of his vessel] 
 
 (e) See Cleii'ac on tlie lltli art. of the that if the iiierchaut stows the pottery, he 
 
 laws of Oleroii. must pay the freight of what is broken ; 
 
 (/) [i^rei'L'h Ordin. liv. 3, tit. 3, Fret, but if the master stows it, he is, at all 
 
 arts. 25, 26. Those articles are repeated in events, to lose the freight of what is broken ; 
 
 the Code de Com. art. 310.] and if there has been any fault in the stow- 
 
 {g) [The sense of this chapter appears not age or carriage, he must also make good the 
 
 to be correctly stated by the learned com- damage.] 
 mentator. The rule therein laid down is,
 
 366 PAYMEXT OF FI? EIGHT. 
 
 Part IV. [occupied by tlic had casks should not he paid the freight, he -woukl 
 suffer for the foult of the hirer, which is imjust^^ («). 
 
 This argument of Pothicr may show Avliat ought to have been 
 established by the ordinance, but it by no means proves that the 
 interprctatiou given by Yalin, and which agrees with the terms of 
 " The Guidon/^ is not the true interpretation. The rule was pro- 
 bably introduced in early times to prevent disputes and litigation ; 
 and adopted by the framers of the French ordinance for the same 
 reason (/>). 
 
 In our "West India trade, the freight of sugar and molasses is regu- 
 lated by the weight of the casks at the port of delivery here, Avhieli in 
 fact is, in every instance, less than the weight at the time of the 
 shipment, and therefore the loss of freight occasioned by the leakage 
 necessarily falls upon the owners of the ship, by the nature of the 
 contract (see ante, p. 351). 
 
 Upon the propriety also of the rule laid down in the preceding 
 article of this ordinance — namely, that which prohibits abandonment 
 generally — these two learned foreigners have differed in opinion. " It 
 must be agreed," says Valin, " that this rule is too rigorous to be 
 compatible with equity. The natural idea that the mind forms of the 
 agreement for freight is, that it has for its object that the goods 
 shipped in pursuance of it shall be the only pledge for the freight, 
 and consequently that upon the same goods alone can the payment of 
 the freight be enforced. From Avhcnce it follows, that in every case 
 [en quelque cas que ce soit) the merchant ought to be quit of the 
 freight by abandoning his goods. This is also the opinion of Casa 
 Regis, Disc. 23, n. 46, and Disc. 23, n. 86, 87. In the case of 
 shipivreck, it is decided by the ordinance that the freight is not due 
 when the goods arc lost ; now, when the goods are so injured by the 
 shipwreck that he to whom they belong cannot derive from them 
 wherewith to pay the freight, is it not the same to him as if they had 
 been wholly lost by the mere act of shipment ? If, then, he had not 
 the power of abandoning the goods to discharge himself from the 
 payment of the freight, his condition would be worse than if all had 
 perished without resource, and this is what natural equity will not 
 allow him to suffer." The learned commentator then proceeds to 
 acquaint us that a practice prevailed in his country of not compelling 
 the merchant to reclaim shipwrecked goods, and that unless he 
 reclaimed them the master was never known to obtain the payment 
 of the freight. On the other hand, Pothier (c), speaking of this 
 article of the ordinance of his country, says : " This rule, notwith- 
 standing what is said of it by Yalin, is just, and conformable to 
 the principles of the contract of letting to hire. It is sufficient, 
 according to these principles, to make the whole hire due to the letter] 
 
 (a) Traite de Charte-Partie, num. 60. place, the merchant is obliged to pay the 
 
 (b) [The Ordinance of Rotterdam on this freight of wliat happens to be damaged or 
 subject seems to agree with the general rule diminished without any fault of the master 
 of the French Ordinance. It declares, that or ship's crew. Art. 155 ; 2 Magens, 105.] 
 when the goods are arrived at the intended (c) Charte-Partie, num. 59. 
 
 4
 
 7. WHEN GOODS DAMAGED. 367 
 
 [that he has wholly performed the obligation which he contracted, to Chap. 9. 
 
 give to the hirer the enjoyment of the thing let to hire : now the 
 
 master having transported the goods to their place of destination, it 
 may be truly said that he has wholly fulfilled his obligation, and that 
 he has given to the merchant the enjoyment of the ship for the use for 
 which he had let it to him, since this transport was the only use for 
 which they contracted. If the goods are found greatly damaged, 
 and of no value, this is a matter that does not concern the master, 
 because it is by an accident against which he does not warrant 
 that they are reduced to this condition. The point of Valines 
 objection,'' proceeds he, " is, that it is the same thing to the merchant 
 whether the goods are absolutely lost or become of no value. The 
 answer is, that it is on the side of the master that we ought to con- 
 sider Avhether this is the same thing. Now it is evident that this is 
 not the same thing to the master. For when the goods are lost on 
 the wa}^, not having been able to transport them to the place of 
 destination, he has not fulfilled the object of his contract — munere 
 vehendi functus non est ; and it is for this reason that the freight is 
 not due to him : but when he has transported them, however in- 
 jured they may be found, he has fulfilled the object of his contract — 
 munere vehendi functus est — and by consequence the freight is due to 
 him" {d). 
 
 In addition to this answer given by Pothier, it may be proper also 
 to observe, that the argument of Valin seems to prove too much ; for 
 if the goods are to be the only security for the freight, and the mer- 
 chant ought not to pay the freight, if they are not worth the amount 
 of it, the master and owners must lose the freight if the goods happen 
 from any accident to come to a bad market, which is contrary to all 
 law and reason ; and further, that the foundation of the argument 
 does not apply to this country, by the law of which, although the 
 goods are pledged for the freight, yet the merchant also is personally 
 responsible for it. 
 
 I have detailed the opinions of these learned foreigners thus at 
 length, because they appear to me to comprise the wdiole argument 
 on both sides of the question, which, as I have before observed, has 
 not [e) received a judicial decision in this country. It is true indeed, 
 that Lord Mansfield, in a case that will be more full}'- stated here- 
 after, delivered himself to the following effect : — '' As to the value of 
 the goods, it is nothing to the master whether the goods are spoiled 
 or not, provided the merchant takes them ; it is enough if the master 
 has carried them, for by doing so he has earned his freight ; and the 
 merchant shall be obliged to take all that are saved or none : he shall 
 not take some and abandon the rest, and so pick and choose what he 
 likes, taking that Avliich is not damaged, and leaving that which is] 
 
 {d) [Pothier, Cliarte-Partie, num. 59.] against the right of the owner to abandon 
 
 This is also conformable to the Code de Com. the deteriorated goods in discharge of the 
 
 arts. 305, 310. See Eoulay Paty, tom.2, 488. freight. Kent's Com. Edin. edit. p. 217. 
 In America, also, the better opinion, and the (e) This, it will be noticed, is from the 
 
 one adopted in the case of Griswold v. The 5th Ed. of this work, which was published 
 
 New York Ins. Co., 3 Johns. Kep. 321, is in 1827. See ante, p. 363, note,
 
 368 IWYMENT OF FT^ETOHT. 
 
 Part IV. [spoiled or damaged. If lie abandons, he is excused freight, and he 
 may abanrlon all, though they are not all lost.^^ But it is to be 
 observed, that the question of abandonment was not the point in 
 issue in that cause ; and, in fact, in that case the goods had not been 
 carried to the place of destination, but the vessel, which was bound 
 for Lisbon, had been captured and re-captured, and was carried with 
 the goods into a port in Devonshire, Avhere the merchant received 
 them ; and, therefore, if Lord Mansfield is to be understood to speak 
 with reference to the case then before him, the sentiments delivered 
 by him on that occasion cannot be considered as furnishing an 
 authority for the decision of the question in the case of goods actually 
 carried to the place of destination. It is true, also, that in the case 
 of Lutwidge v. Grey, which will be fully cited for another purpose in 
 a subsequent part of this chapter («), it seems to have been taken for 
 granted, by the counsel on both sides^ that the merchants might have 
 abandoned the whole cargo ; but in that case the ship was wrecked, 
 and the goods saved at a great expense, at a place short of the port 
 of delivery; and the right of abandonment is spoken of Avith refer- 
 ence to the situation of the goods at that place. Most certainly the 
 merchant cannot be compelled to accept his goods at any other place 
 than the place of destination : even if the master should pay the 
 salvage, and convey them to that place, the merchant may be allowed 
 to have his option of accepting them or not, loaded with the additional 
 expense of salvage. And accordingly, in another case. Lord jMans- 
 FiELD said, " The owner of the ship has a lieu for freight, but in a 
 total loss, literally so called, no freight is due ; in case of a loss, 
 total in its nature, with salvage, the merchant may either take the 
 part saved, or abandon ^^ [b). The only point intended to be proposed 
 by me as doubtful, is the right to abandon for the freight alone at 
 the port of destination ; and, in point of practice, I have been in- 
 fo)-med that this right is never claimed in this country (see ante, 
 p. 363, note) . 
 
 Bullion and specie have been sometimes sent from abroad to this 
 country by merchants, in ships belonging to his Majesty, for Avhicha 
 remuneration was paid by the merchant. Questions have arisen as to 
 the distribution of this money among officers of the King's ships 
 but as those questions do not seem to belong to this Treatise, I shall 
 merely refer to the names of the cases in a note (c) .] 
 
 8. Of Freight ivhen Part of the Goods only have been brought to 
 the Place of their Destination, and of Freight, pro ratfi itineris 
 peracti. 
 
 [Having thus considered the cases in which the entire freight is to 
 be paid according to the agreement^ I now proceed to the consideration] 
 
 (rt) Fost, p. 374. Brislane, Knt., v. Dacres, 5 Taunt. 143. 
 
 (b) Baillie v. Moudiffliani, Park, ch. 2, Warren v. Shirreff, 5 M. & S. 32.] Hamlett 
 p. 70. V. Richardson, 2 M. & S. 814. 
 
 (c) [^Montagu V, Ja>irerin,ZTs{\mt A'l2.
 
 S. OP TAUT OP STIPULATED PREIGHT. 369 
 
 [of those in which ^part only of the stipulated sum may be claimed. Chap, 9. 
 
 And these are, first, when the ship has performed the whole voyage_, 
 
 but has brought a part only of the merchant^'s goods in safety to the 
 place of destination ; and, secondly, when the ship has not performed 
 the whole voyage, but the master has delivered the goods to the 
 merchant at a place short of the port of destination. In the case of 
 a general ship, or of a ship chartered for freight, to be paid according 
 to the quantity of the goods, there can be no doubt that freight is 
 due for so much as shall be delivered- — the contract in these cases 
 being distinct, or at least divisible in its own nature. But suppose a 
 ship chartered at a specific sum for the voyage, without relation to 
 tlie quantity of the goods (in which case the contract, as observed by 
 Lord Chancellor Hardwicke {d), is more properly a contract for the 
 use of the ship than for the conveyance of the merchandise), should 
 lose part of her cargo by a peril of the sea, but convey the residue to 
 the place of destination — in this case I do not find any authority for 
 apportioning the freight. And it seems to have been the opinion of 
 Malyne [e) that nothing would be due ; and the case of Bright v. 
 Co if^jer, which will be mentioned hereafter (/), may be considered as 
 an authority in support of that opinion. But probably, if the ques- 
 tion should arise again, the determination of it would depend upon 
 the particular words of the charter-party ; for without a very jjrecise 
 agreement for that purpose, it seems hard that the owners should lose 
 the whole benefit of the voyage, where the object of it has been in 
 part performed, and no blame is imputable to them. 
 
 The apportionment of freight usually happens when the ship, by 
 reason of any disaster, goes into a port short of the place of destina- 
 tion, and is unable to prosecute and complete the voyage. In this 
 case we have already seen that the master may, if he will and can do 
 so, hire another ship to convey the goods, and so entitle himself 
 to his whole freight ; but if he is unable, or if he declines to do 
 this, and the goods are there received by the merchant, the general 
 rule of the ancient maritime law is, that freight shall be paid accord- 
 ing to the proportion of the voyage performed — pro rata itineris 
 peracti {(/) . 
 
 Some writers (A) have endeavoured to trace this rule to the Digest 
 of Justinian, but the passages referred to by them do not appear to 
 contain such a regulation. The rule however is, without doubt, 
 extremely ancient. It is to be found in the collection called the 
 Rhodian Laws (i), but which collection is now generally agreed to be of 
 a later date than the time of Justinian (k) , and also in the Consolato] 
 
 (d) lu Paul V. Birch, 2 Atk. 621; ante, (k) Roccus, uot. 81. 
 
 p. 219. (i) Per Lord Mansfield in Ln7ce v. Li/de, 
 
 (e) Malyne's Lex Mercat. p. 100. 2 Burr. 889. 
 
 (/) Post, p. 379. See Robinson v. (k) [Sebomberff's Dissertation on tbese 
 
 Knights, jpost, p. 380. laws. Tbe only rule tbat can be distinctly 
 
 {g) [The Ordinance of Rotterdam difPers and authoritatively traced to the institution 
 
 in this respect from the general rule; for it of Rhodes is the law de Jcictu, quoted and 
 
 allows the merchant to take his goods, adopted in the Dig. 14, 2, 1. See the 1st 
 
 paying a reasonable portion of tlie freight, chapter of the 6th part.] 
 in case the ship may be repaired in a short 
 time. Art, 147; 2'Magens, 104.] 
 
 2 B
 
 370 PAYMENT OF FREIGHT. 
 
 Part IV. [del Mare (a). The Tixle, as laid down in the laws of Oleron [b), 
 is to the following effect : — If a ship depart with a cargo from 
 Bordeanx, or other place, and it happens that the ship is disabled, 
 and as ninch of the cargo is saved as possible, the merchants and 
 master enter into a gi'eat debate, and the merchants demand to have 
 their goods of the master, they may have them, by paying freight for 
 so much of the voyage as the ship has advanced, rateably, and in pro- 
 portion if the master pleases ; but if the master will, he may repair 
 his ship if he can do it speedily ; and if not, he may hire another 
 ship to complete the voyage, and shall have his freight of the 
 goods, to be reckoned according to their proportion to the ivhoJe 
 cargo ; and the goods shall pay the cofets of their salvage. The rule 
 is also to be found in Roccus (<?) — who cites several more ancient 
 authors in support of it — and all the subsequent writers on maratime 
 law; and is adopted in most of the foreign ordinances, particularly in 
 the French ordinance {d), which declares that "the master shall be 
 l^aid the freight of goods saved from shipwreck, if he conveys them 
 to the place of destination ; if he cannot find a vessel to convey the 
 goods saved, he shall be paid freight in proportion only to the voyage 
 performed.^^ So "if the master be obliged to repair his vessel 
 during the voyage, the merchant must wait or pay the entire freight ; 
 and in case the vessel cannot be repaired, the master shall be obliged 
 forthwith to hire another ; and if he cannot find one, he shall be paid 
 freight in the proportion only of what the voyage shall be ad- 
 vanced " (e) . These obligatory words are said to mean only that the 
 master must hire another ship if he ivill gain his ivhole freight (/). 
 But in the case of interdiction of commerce and return of the ship, 
 this ordinance prescribes a different rule, which I have before 
 noticed ; " If there happen a prohibition of commerce with the 
 country to Avhich the ship is sailing, and the master be obliged to 
 return with his cargo, the outward freight alone shall be due to the 
 master, although the ship be freighted out and home [g). 
 
 With regard to capture and ransom, the author of " The Guidon/^ 
 speaking of the case where the goods only are taken by pirates and 
 the ship discharged, and the goods are afterwards ransomed, says, 
 that " if the master will not contribute to the ransom, he shall lose 
 his whole freight ; but if he contributes, he shall be paid freight as 
 far as the place of the capture, as well in the case of affreightment by 
 charter-party as otherwise; and if he furnishes another ship to 
 relade the goods, he shall be paid his whole freight" (A). Upon this 
 subject the French ordinance provides, " that if the ship and goods 
 are ransomed, the master shall be paid his freight as far as the place] 
 
 (a) [Per Lord Mansfield, in Luke v. Code de Com. art. 303, as to paj-ment to the 
 Lyde, 2 Burr. 889, alluding probably to place of shipwreck. 
 
 ch. 193.] (e) Same title, art. 11 ; and Code de Com. 
 
 (b) Ai-t. 4j and see Ordin. of Wisbuy, art. 296. 
 
 arts. 16, 37. ' (/) Valin on the article. 
 
 (c) Loc. sup. cit. {g) Same title, art. 15, and Code de Com. 
 Id) Liv. 3, tit. 3, Fret. arts. 21, 22; and art. 299. 
 
 {h) Guidon, ch. 6, art. 7.
 
 8. OP PAET OF STIPULATED PPxEIGIIT. 371 
 
 [of capture — even his whole freight, if he conveys the goods to the Chap. 9. 
 place of destination, he contributing to the ransom'^ (i). Although 
 ransom is now prohibited by the law of England^ yet this doctrine 
 may apply to the case of capture and recapture ; and, accordingly, in 
 an action brought by a seaman for his wages, in the case of a ship 
 taken and retaken, and which reached the port of destination (k), 
 Lord Eldon, before whom the cause was tried, hekl that the wages 
 were payable, because, said his lordship, " the ship on her arrival ivas 
 entitled to freight^' {I). 
 
 Upon this subject of the apportionment of freight, Malyne says, 
 " If the ship in her voyage become unable, without the master^s 
 fault, or the master or ship be arrested by some authority of 
 magistrates in her way, the master may either mend his ship or 
 freight another ; but in case the merchant agree not thereunto, then 
 the master shall at least recover his freight, so far as he hath deserved 
 it {m) . The same author also mentions the following case : — A 
 merchant took a ship to freight, and put in the master and mariners, 
 and victualled the ship at his own expense, and by a charter-party 
 engaged to pay the owner for the use of ship and furniture 20/. every 
 month, at her return into the river Thames. The merchant laded 
 the ship for the Streights, and to go from port to port and to several 
 places with merchandise ; and after about two years, the ship, having 
 taken in a cargo at Barbary, was, on her return to London, cast away 
 by a tempest near Dover, and the goods were saved. The merchant 
 refused to pay the freight, because the ship did not arrive in the 
 river Thames, according to the words of the charter-party. '' Herein,'^ 
 says the author, '' the owner was much wronged, for the money is 
 due monthly, and the place was named only to signify the time when 
 the money due was to be paid;^^ but he does not inform us whether 
 the question was ever brought before a court of justice, or whether or 
 no the merchant finally paid any part of the freight [n] . His opinioUj 
 however, is confirmed by the following case : — 
 
 The ship Lord Duncan was let to freight for 12 calendar 
 months certain^ from the 24th of September, 1806, and from thence 
 for such longer period, if any, as the merchants should detain her. 
 The merchants covenanted to pay for the hire and service of the ship 
 for 12 months, and such longer time as they should keep her, the freight 
 and rate following — viz., 24 shillings per calendar month per ton, 
 being 1,119/. 12^. per month, commencing from the before-mentioned 
 day, and ending ivhen the ship should be returned to the river Thames, 
 and thereby the freighters be declared to be discharged ; it being under- 
 stood that they should not be at liberty to discharge the ship at any 
 other place but within the port of London ; the freight to be paid in 
 the proportions and at the periods following — viz., two months at the] 
 
 (i) Liv. 3, tit. 3, Fret, art. 19, and Code {V) See a»^c,sect. 1. of this chapter, a«fe, 
 
 de Com. art. 303. p. 346. 
 
 {k) Bergstrom v. Mills, 3 Esp. 36. This (;«) Malyne, p. 98. 
 
 is taken from the 5th Ed. of this work (m) Ibid., p. 101, 
 
 publislied in 1827. As to the present law 
 as to ransoming prizes, see ante, p. 20. 
 
 2b2
 
 372 PAYMENT OF FrvEIGHT. 
 
 Part IV. [execution of the cliarter-party ; two months more at the end of six 
 calendar months from tlic said .'24th September ; two months more 
 at the end of ten calendar months ; two months more at the end of 
 fourteen calendar mouths, should the ship be so long employed ; and, 
 in like manner, two months more at the end of every succeeding two 
 calendar months, «n/i/ the ship should be discharged, and immediately 
 upon such discharge the balance to be paid. The ship Avas taken into 
 the employ of the merchants, and between ten and twelve months from 
 the said of 2-lth September was destroyed at Saiut Domingo by an 
 accidental fire. The merchants contended that the right to the 
 portions of freight depended upon the safety of the ship at the parti- 
 cular times at which they were made payable, so that the loss of the 
 ship at the time before-mentioned confined the claim of the owner to 
 six months, for Avhicli period he had been paid. But the Court of 
 King's Bench decided that the times fixed for the actual payment 
 were to be considered only as postponing for the merchants' con- 
 venience the actual payment of sums then due to a future period, not 
 as creating a contingency whether they should ever be paid at all ; 
 and that each month's freight was earned and became completely due 
 at the end of each month, the actual payment only being post- 
 poned [a). The distinctions between this case and that of Smith v. 
 TVilson (which will be mentioned hereafter) {b), both as to the terms 
 of the contract and the subsequent events, will be obvious to the 
 reader. 
 
 This rule of the maritime law, which directs the payment of 
 freight according to the portion of the voyage performed — pi'o rata 
 itineris peracti — is open to much observation and to many difficulties. 
 I have been able to collect upon it only the following decisions of 
 English conrts {c). 
 
 Lutwidge, the owner of a ship called the Wharton, let his ship by 
 a charter-party to Archibald Grey and others, merchants at Glasgow, 
 for a voyage from Glasgow to Maryland or Virginia, and back, and 
 was to receive freight from them for the homeward cargo only, at the 
 rate of 8/. \2s. per ton of tobacco, computing 4 hogsheads to the ton ; 
 one half to be paid immediately after the ship's discharge at Glasgow, 
 and the other half within six months after such discharge. The ship 
 sailed to Virginia, delivered her outward cargo, and took on board 
 from the merchants' factor a cargo of tol)acco, consisting of 199 
 hogsheads, part of which was their property ; the residne belonged 
 to other persons. Grey and Co. insured their part of the cargo 
 Avith persons living at Bristol; the other part was not insured. 
 On the return homeward the ship was cast away at Youghal, in 
 Ireland, and part of the cargo, to the amount of 133 hogsheads, 
 Avas saved by the assistance of the officers of the customs, and 
 deposited in the Custom-house there. Lutwidge, the owner, as 
 soon as he knew of the misfortune, informed Grey and Co. of it,] 
 
 («) \_IIavelockv. Geddes, 10 East, 555. (c) This, it must be borne in mind, is 
 Se3 ante, p. 200.] See Crozier v. Smith, 1 t;iken from the 5th Ed. of this work pub- 
 Scott, N. E. 338. lished in 1827. 
 
 (6) See the last section of this chaptci'.
 
 8. OP TAET or STirULATED FREIGHT. 373 
 
 [and told tliem he sliould provide another ship to transport the tobacno Chap. 9. 
 Avhich was saved. Grey and Co. abandoned their part of the cargo to 
 their insurers, and endorsed over the bills of lading to them. Lut- 
 widge provided another ship at Youghal, but the insurers took the 
 part of the cargo abandoned to them, and conveyed it to Bristol. 
 The agent of the proprietors of the other part of the cargo Avas willing 
 to have laded it on board the ship thus provided, if thehnaster thereof 
 would sign bills of lading to deliver it at Glasgow, in conformity with 
 the original charter-party ; but the master refused to give such bills 
 of lading, or to oblige himself to deliver it at Glasgow, offering only 
 to give receipts obliging himself to deliver it in Great Britain ; and 
 the agent refused to deliver it to him upon those terms, and sent it 
 by another vessel to Glasgow, where several hogsheads were found so 
 much damaged that they were not entered at the Custom-house, but 
 burned at the King's scales there, Lutwidge brought an action 
 against Grey and others for his freight, according to the charter- 
 party, in the Court of Admiralty in Scotland. On their part it was 
 insisted, that the contract of affreightment Avas dissolved by the ship- 
 wreck, and that there remained only a demand in equity for freight ; 
 that the demand could not be made against them, who had not taken 
 the goods into their possession, but must be made for part against the 
 insurers at Bristol, and for the residue against the proprietors of that 
 residue ; that this demand could only be in proportion to the value of 
 the goods saved, after deduction of salvage and charges ; and that, at 
 all events, it could only be for the proportion of the voyage to 
 Youghal, because the master of the ship refused to sign bills of lading 
 and engage to deliver the tobacco at Glasgow. The judge of the 
 Court of Admiralty decreed that the full freight was due from Grey 
 and Co. for the part of the cargo saved, but none for the part lost ; 
 and that the full freight was due, although the goods were not car- 
 ried to Glasgow, because Lutwidge had another shijD ready to trans- 
 port them thither, and there was no occasion for any new bills of 
 lading while the former bills of lading subsisted. From this judg- 
 ment Grey and Co. appealed to the Lords of Session in Scotland, who 
 by their interlocutor decreed, " That the contract of affreightment 
 was dissolved by the total loss of the ship, albeit some of the ship- 
 Avrecked goods were saved out of the shipwreck ; and found that the 
 freighters' endorsing the bills of lading to the insurers did not sub- 
 ject the freighters for any freight for the goods recovered by the 
 insurers, but found the merchants liable to the freight 2^'''o Tdta 
 itiiieris, of such of the goods as were brought to Glasgow, notwith- 
 standing some of the tobacco was found damnified and burned there.''^ 
 This decree or interlocutor was, upon the petition of Lutwidge, 
 reviewed by the Lords of Session, but affirmed by them. Hereupon 
 Lutwidge appealed to the House of Lords, which reversed the decree 
 or interlocutor of the Lords of Session complained of by the appel- 
 lant, and the affirmance of that interlocutor ; and declared " that the 
 respondents, Grey and others, were liable for the full freight of such 
 of the goods as were given up to the insurers, and for the freight pro 
 rata itineris of such of the goods as were brought to Glasgow, not-]
 
 374 TAYMENT OF TREIGHT. 
 
 Part IV. [withstanding some of the tobacco was found damnified and burned 
 there " (a) . 
 
 The next case on this subject was decided in the Court of King's 
 Bench^ and occurred soon after Lord Mansfield presided in that 
 court. The cause had been tried before him in the country, and he 
 appears to have paid particular attention to the decision, " I was 
 desirous/^ he said, " to have the point reserved for the opinion of 
 the court, in order to settle it more deliberately, solemnly, and 
 notoriously; as it is of so extensive a nature, and especially as the 
 maritime law is not the laAv of a particular country, but the general 
 law of nations : non erit alia lex Roma, alia Athenis : alia nunc, alia 
 posthac sed et apud omnes gentes et onmi tempore una eademque lex 
 obtinebit." 
 
 The facts of the case were these: — Lyde shipped a cargo of 1,501 
 quintals of fish at Newfoundland, on board the ship Sarah, belonging 
 to Luke and others, to be carried to Lisbon : the freight was to be at 
 the rate of two shillings per quintal. The price of the cargo at New- 
 foundland was ten shillings and sixpence per quintal. Luke and 
 others also had on board a quantity of fish, their own property. The 
 ship set sail on the 27th of November, 1756, and having proceeded 
 seventeen days on her voyage, was taken, on the 14th of December, 
 by a French ship, within four days' sail of Lisbon, but retaken on 
 the 17tli of December by an English privateer, and brought, on the 
 29th, into the port of Biddeford, in Devonshire. The French ship 
 took out the master and all the crew, except one man and a boy. 
 Lyde took his goods of the recaptors and paid^ve shillings per quintal 
 salvage, the value of the fish being then estimated at ten shillings per 
 quintal. The fish could not be sold at all at Biddeford, nor at any 
 other port in England, for more than ten shillings per quintal, clear 
 of charges and expenses ; and it was supposed by every person that 
 the fish would be disposed of to the greatest advantage at Billioa, in 
 Spain, to which place Lyde sent it without delay ; but it fetched there 
 only j^fe shillings and sixpence per quintal clear of freight and expenses, 
 being little more than one-third of the prime cost and salvage. The 
 freight from Biddeford to Lisbon ivas higher than from Newfoundland 
 to Lisbon. The owners, Luke and others, abandoned the ship to 
 their insurers, and nerer offered to convey the goods to Lisbon, nor 
 ivere ever required to do so by Lyde, the merchant. In an action 
 brought by the owners, Luke and others, for freight, the court decided 
 that they should recover freight as for half the quantity of the cargo 
 shipped, considering the other half to be absolutely lost by the expense 
 of salvage, and in the proportion of seventeen days, during which the 
 ship had proceeded on the voyage, to twenty-one days, Avithin which 
 the voyage would have been completed if the capture had not hap-] 
 
 (a) {^Luiwidffev. Crej^, determined iii the Lords will be found in the printed journals 
 
 House of Lords, February 23, 1733. The of the year, p. 356. The case is cited in 
 
 account here given is taken from the printed Luke v. Lt/de, both Ht the bar, and by Lord 
 
 cases delivered by both parties to the House ^lansfield, who was one of the counsel for 
 
 of Lords. The judgment of the House of the appellants.]
 
 8. OF PART OF STIPULATED FEEIGHT. 37^ 
 
 [penecl — that is 60/. 145.^ being H of 751., the half 150/. And Lord Chai. 9. 
 
 Mansfield said "If a freighted ship becomes accidentally disabled "■"" 
 
 on its Yoyage_, without the fault of the master, the master has his 
 
 option of two things — either to refit it (if that can be done ^Tithin 
 
 convenient time), or to hire another ship to carry the goods to the 
 
 port of delivery. If the merchant disagree to this, and will not let 
 
 him do so, the master will be entitled to the whole freight of the full 
 
 voyage ; and so it was determined in the House of Lords, in the case 
 
 of Lutioidge and How v. Grey et al. As to the value of the goods, 
 
 it is nothing to the master of the ship whether the goods are spoiled 
 
 or not, provided the freighter takes them ; it is enough if the master 
 
 has carried them, for by doing so he has earned his freight, and the 
 
 merchant shall be obliged to take all that are saved, or none ; he 
 
 shall not take some and abandon the rest, and so pick and choose 
 
 what he likes, taking that which is not damaged, and leaving that 
 
 which is spoiled or damaged. If he abandon all, he is excused freight; 
 
 and he may abandon all, though they are not all lost. Now, here is 
 
 a capture without any fault of the master, and then a recapture ; the 
 
 merchant does not abandon, but takes the goods, and does not require 
 
 the master to carry them to Lisbon, the port of delivery. Indeed, the 
 
 master could not carry them in the same ship, for it was disabled, 
 
 and was itself abandoned to the insurers of it ; and he could not 
 
 desire to find another, because the freight was higher from Bidde- 
 
 ford to Lisbon than from Newfoundland to Lisbon. There can be no 
 
 doubt but that some freight is due ; for the goods were not abandoned 
 
 by the freighter, but received by him of the recaptor. The question 
 
 will he, what freight? The answer is, a rateable freight — i.e., pro 
 
 rata itineris. 
 
 " If the master has his election to provide another ship to carry the 
 goods to the port of delivery, and the merchant does not even desire 
 him to do so, the master is still entitled to a proportion, p7'o rata, of 
 the former part of the voyage. I take the proportion of the salvage 
 here to be half of the whole cai'go upon the state of the case as here 
 agreed upon. And it is reasonable that the half here paid to the 
 recaptor should be considered as lost ; for the recaptor was not obliged 
 to agree to a valuation, but he might have had the goods actually 
 sold, if he had so pleased, and taken half the produce, and therefore 
 the half of them are as much lost as if they remained in the enemy^s 
 hands : so that half of the goods must be considered as lost, and 
 half as saved. Here the master had come seventeen days of his 
 voyage, and was within four days of the destined port when the 
 accident happened; therefore he ought to be paid his full freight 
 for if parts of the full voyage for that half of the cargo which was 
 saved. -"^ His lordship then proceeds to cite most of the authorities 
 that I have already quoted on this subject, and concludes thus : " It 
 is quite immaterial what the merchant made of the goods afterwards, 
 for the master had nothing at all to do with the goodness or badness 
 of the market ; nor indeed can that be properly known till after the 
 freight is paid, for the master is not bound to deliver the goods till 
 after he is paid his freight. No sort of notice was taken of that]
 
 376 ' PAYMENT or FEEIGHT. 
 
 Part IV. [matter in the case of Lutwidge and Hoio v. Gre^j, in the House of 
 Lords ; and yet there the tobacco was damaged very greatly, even 
 so much that a great part of it was burnt at the scales at 
 Glasgow " (a). 
 
 In a subsequent case, a ship sailed Avith goods from Nevis for 
 Bristol, but on the voyage was taken and carried into France and 
 condemned there. On appeal, the sentence of condemnation was 
 reversed, and restitution awarded, but before that time the ship and 
 cai'go were sold. The merchants received the price of the goods, and 
 paid freight to the mas<\.cv pro rata itineris ; and having caused the 
 goods to be insured before the commencement of the voyage, brought 
 an action against the insurers to recover from them the freight so 
 paid to the master. The court held, that this payment could not 
 he recovered upon this insurance. But Lord Mansfield said, '^As 
 between the owners of the ship and cargo, iu case of a total loss, 
 no freight is due; but as betAvecn them, no loss is total Avliere part of 
 the property is saved, and the merchant takes it to his own use. In 
 this case the value of the goods Avas restored in money, which is the 
 same as the goods, and therefore freight was certainly Anepro rata 
 itineris " {b) . 
 
 So where a ship under a neutral flag, and with neutral papers, 
 Avas iu time of Avar driven into a British port by stress of Aveather, 
 and seized, together Avith the cargo, and libelled in the Court of 
 Admiralty for condemnation, on account of various circumstances, 
 Avhich led to a suspicion that both ship and cargo were the real pro- 
 perty of the enemy ; and the neutrality of the cargo being proved 
 before proof of the neutrality of the ship arrived, the cargo was restored 
 during the detention of the ship, and part thereof was sent in other 
 vessels to the place of destination, and the residue conveyed to London ; 
 Lord Stoavell, after having decreed the restoration of the ship, decreed 
 also that the merchants should pay freight for their goods for the pro- 
 portion of the voyage performed (c) . 
 
 On the other hand, in the case of a SAvedish ship, which being 
 chartered to go from Plymouth to RadstoAv (a very small distance), 
 there to take a cargo of pilchards for A'enice, sailed to RadstoAv, 
 and took in the cargo, and proceeded a fcAv days on the voyage ; but, 
 meeting Avith bad Aveather and becoming leaky, returned to Falmouth, 
 and Avas there stopped by an embargo imposed on the A'essels of 
 Sweden, in consequence whereof the cargo Avas taken out and restored 
 to the merchants, AA'ho Avere British subjects; the learned judge of the 
 Court of Admiralty decreed no freight Avas due, but held, that if any 
 expenses had been incurred by the ship on account of the cargo, they 
 must be paid [d] . 
 
 Neither of the authors by Avhom the preceding case of Luke v. Li/de 
 is reported, have mentioned the form of action adopted by the] 
 
 (a) Luke V. lA/de, 2 Burr. 882, and 1 (c) The Copenhagen, 1 Kob, Ad. Rep. 
 
 Black. Rep. 190. 289. 
 
 {b) iBaillie v. Jloudii/liaiii, Park, di. 2^ (d) The Isabella Jacohina, 4 Rob. Ad. 
 
 p. 70.] See Hopper v. Burness, and other Rep. 77. 
 cases referred to, post, 382.
 
 8. OF PART OV STIPULATED FREIGHT. 377 
 
 [plaintiff Luke to enforce his demand. In a case since decided in the Chap. 9. 
 Court of King's Bench^ it was understood to have been an action for 
 freight for the carriage of goods generally, and not an action founded 
 on the original contract for the conveyance of the goods from New- 
 foundland to Lisbon. And so it really was (e). The case to which 
 I at present allude is that of Cooky. Jennings (/),Avhich was an action 
 of covenant on a charter-party of affreightment, dated 2nd of August, 
 1796, by which the plaintiff' let his ship, the Resolution, to the defen- 
 dant, to freight from Liverpool to Wyburgh, and back to laverpool, 
 and agreed that the master should take on board a cargo of salt for 
 Wyburgh, and after delivering the same there, should take on board 
 a cargo of deals ; in consideration of which the defendant agreed to 
 pay to the plaintiff, " in full for the freight and hire of the ship for 
 the said voyage, at and after the rate of 71. per standard hundred for 
 deals delivered at Liverpool, &c., the freight to be paid one -fourth in 
 cash at her arrival, and the remainder by an acceptance on London 
 at four months^ date.^^ The plaintiff" in support of his action alleged 
 that the ship, after carrying the cargo of salt to Wyburgh, took on 
 board there a cargo of deals, &c. ; and proceeded on her voyage for 
 and towards Liverpool, &c. ; and whilst the ship was so proceeding, 
 and after she had performed a great part of her voyage, but before 
 her arrival at Liverpool, the ship was, by the force and violence of 
 the Aviud and waves, wrecked and cast upon the shore, and thereby 
 became incapable of proceeding any further on the voyage, by reason 
 Avhereof it became necessary to put the cargo of deals on shore for 
 the preservation thereof, " which said cargo so unladed the defendant 
 accepted and received into his hands and possession, and sold and 
 disposed of the same to his own use, whereby he became liable to pay 
 to the plaintiff a proportionable part of the said freight and hire of 
 the ship for the carriage of the said cargo of deals, for such part of 
 the voyage from AYyburgh to Liverpool as the ship performed;" 
 which proportionable part amounted to the sum of 800/.; and for the 
 recovery of that sum the action was brought. 
 
 These facts were admitted to be true, and it was admitted that uo 
 part of the cargo was conveyed to Liverpool. The plaintiff did not 
 pretend that he had offered to convey the deals thither, nor did the 
 defendant assert that he had required him to do so. The Court of 
 King's Bench decided that the plaintiff could recover notliing in the 
 present action. Lord Kenyon said, " We are called upon to decide, 
 in this action, according to the rules of law, on a contract between 
 these parties, which was made in the most solemn manner by a deed 
 under seal ; though, indeed, I do not know that it would have made 
 any difference if the question had arisen on a precise formal contract] 
 
 (e) [I have examined the record, and fi nd (/) [ Cooh v. Joinings, 7 Term Rep. K. B. 
 
 it to be so. The issue is of Trinity Term, 381. The case came before tlie com-t ou a 
 
 32 & 33 Geo. 2, Roll. 379. The declaration demurrer to the plea, which alleged that no 
 
 is for the freight of goods carried in the part of the deals was delivered at Liverpool 
 
 plaintiff's ship by sea, without mentioning according to the charter-party.] 
 from or to what place.]
 
 378 PAYMENT OF FEEIGHT. 
 
 Part IV. [not under seal. By the terms of this agreement the defendant 
 engaged to pay so much on delivery of the goods at Liverpool, one- 
 fourth in casli on hei- arri\al, and the remainder by an acceptance at 
 four months. But the goods never arrived : then at what time were 
 those hills to he dated ? Wc do not sit here to make, but to enforce 
 contracts; and the question put to us is, Whether the freight is to be 
 paid under this contract, though the ship never arrived, but was lost 
 before her arrival at Liverpool? LTpon which I cannot bring my 
 mind to doubt. The case of Lvke v. Lyde is very distinguishable 
 from the present, that being the case of a general assumpsit for the 
 freight of goods, in Avhich Lord Mansfield states the marine law on 
 this subject. But Avliat has the case of an implied contract to do 
 with an express contract? Lord Coke says, ' expressum facit cessare 
 taciturn.' Here the parties are bound by a precise agreement. Then 
 it is suggested, that we ought not to give effect to this contract, 
 because it is unreasonable; but Ave are to decide according to the 
 contract of the parties; and the law says, that if A. covenant to 
 enfeoff B., A. is not released from his covenant, though B. will not 
 accept livery of seisin, unless the act be frustrated by the act of the 
 covenantee. It is not necessary now to determine whether or not the 
 plaintiff might not have brought an action of assumpsit ; it Avill be 
 time enough to decide that case whenever the question arises. But 
 here the question is, AThether or not he can enforce payment of the 
 money under this contract, not having carried the goods to Liverpool, 
 and the defendant having only undertaken to pay on their delivery at 
 Liverpool ? In answer to this action the defendant has a right to say. 
 Noil luce in feeder a veni." 
 
 The other judges concurred in the same opinion. Mr. Justice 
 Grose cited the case of Bright v. Cowper as a direct authority against 
 the plaintiff. 
 
 Mr. Justice Lawrexce said : ''^I agree with the plaintiff's counsel, 
 that whether the contract be by parol or under seal, the operation of 
 the law on it is equally the same. When a ship is driven on shore, 
 it is the duty of the master either to repair his ship, or to jjroeure 
 another ; and having performed the voyage, he is then entitled to his 
 freight ; but he is not entitled to the ivhole freight, unless he perform 
 the ichole voyage, except in cases where the owner of the goods pre- 
 vents him ; nor is he entitled pro rata unless under a new agreement. 
 Perhaps the subsequent receipt of these goods by the defendant might 
 have been evideuce of a new contract between the parties; but here 
 the plaintiff has resorted to the original agreement, under which the 
 defendant only engaged to pay in the event of the ship's arrival at 
 Liverpool. That event has not happened, and therefore the plaintiff 
 cannot recover in this form of action." I presume the learned judge, 
 in thus speaking of the duty of the master, must be understood to 
 have expressed himself with a view to the master's claim of his Avhole 
 freight. 
 
 The next case upon this subject was an action brought for the 
 recovery of freight or passage money against a person who had 
 embarked with his family and luggage in a ship bound from Demerara]
 
 - 8. OF PACT OF STIPULATED FREIGHT. 379 
 
 [to Flushing, at a stipulated price for the voyage. The ship was taken Chap. 9. 
 by a British cruiser at the entrance of the channel, and was brought 
 into Plymouth, and libelled in the Court of Admiralty as prize. The 
 defendant and his family were set at liberty at Plymouth, and the 
 luggage restored. The case o£ Luke v. Lyde was cited in support of 
 the master's claim. The action was brought pending the proceedings 
 in the Court of Admiralty, and upon that ground was decided against 
 the master, because possibly the Court of Admiralty might order the 
 defendant to pay to the captors; but the observations made by Mr. 
 Justice Le Blanc upon the subject now under consideration deserve 
 great attention. " It is not necessary," said the learned judge, " to 
 give any opinion upon the case of Lvke v. Lyde ; for, as this case now 
 stands, the plaintiff cannot at any rate recover in this action. Sup- 
 posing this were a case for the freight of goods only, which had been 
 stopped in the course of their voyage, and carried to another place, 
 then, by assimilating it to the case of Luke v. Lyde, the plaintiff con- 
 tends that he is entitled to recover pro rata for the freight, not on the 
 ground of the original contract, but by reference to the marine law, 
 on which the courts have shaped a course to recover for a benefit to 
 the defendant, which made part of the original contract. That was 
 the footing on which the case of Luke v. Lyde was put — that though 
 the master could not recover on the original contract, which was not 
 performed, yet that he might recover on an implied assumpsit for a 
 benefit already conferred on the defendant ; which in that case Avas 
 implied from the acceptance of the goods by the defendant at the port 
 into which they were carried" (a) . 
 
 The case of Bright v. Cowper [b], cited by Mr. Justice Grose, 
 happened in the time of James the First, at a period when mercantile 
 causes or contracts had very seldom occupied the attention of English 
 courts of justice. The report of it is in the following words: "Action 
 of covenant brought upon a covenant made by the merchant with a 
 master of a ship, videlicet, that if he would bring his freight to such 
 a port, then he would pay him such a sum, and shows that part of 
 the goods were taken away by pirates, and that the residue of the 
 goods were brought to the place appointed, and there unladed, and 
 that the merchant hath not paid, and so the covenant broken ; and 
 the question was ; Whether the merchant should pay the money 
 agreed for, since all the merchandises were not brought to the place 
 appointed ? and the court was of opinion, that he ought not to pay 
 the money, because the agreement was not by him performed." 
 Upon reading this report, it is not quite clear what was the real 
 question before the court ; but it seems that the plaintiff claimed his 
 ivhole freight, to which it might very properly be decided that he was 
 not entitled, as he had not performed the ivhole contract. If he 
 claimed a part only of the freight, and was held by the court not to 
 be entitled to anything, it may be, that by the particular terms oi 
 the contract, the payment of freight was made to depend upon the] 
 
 (a) Mutloy v. BacTcer, 5 East, 3l6. {h) 1 Browulow, 21.
 
 ^80 
 
 rAYME>s'T OF FEEIOHT. 
 
 Part IV. [delivery of the entire cargo. ]\Iolloy, immediately after the citation 
 of this casCj adds the following observations : " But by the civil law 
 this is vis major, or casus fortaitus, there being no default in the 
 master or his mariners, and the same is a danger or peril of the sea, 
 which, if not in naval agreements expressed, yet is naturally implied ; 
 for most certain had those goods which the pirates carried away in 
 stress of weather, navis kvandce causa, been thrown overboard, the 
 same would not have made a disability as to the receipt of the sum 
 agreed on : for, by both the common law and the law marine, the act 
 of God, or that of an enemy, shall no ways work a Avrong in actions 
 private" {a). 
 
 Upon a review of these cases, it will appear that, considering the 
 subject with regard to the proceedings in the courts of common law 
 of England, the right to freight pro rata itineris must arise out of 
 some new contract between the master and the merchant [h), either 
 expresshj made hy them, or to be inferred from their conduct (c). 
 The right cannot possibly exist when the original contract has been 
 performed, for then the master has another and more beneficial 
 claim. Where an inference is to be drawn from the conduct of the 
 parties, the rule of the maritime law Avill probably have great 
 weight. But admitting this, still its true import and meaning may 
 be questionable. 
 
 In the case of Luke v. Lyde, it appears to have been adopted by 
 Lord Mansfield ad literam; to have been treated rather as a 
 positive rule, laid down to prevent questions and discussions, than as 
 a general principle of jurisprudence, to be moulded and modified 
 according to the circumstances of each particular case that may fall 
 within its operation. For it is obvious that the rule was there con- 
 sidered by his lordship a rule of space or time, and that the portion 
 of the voyage performed was, in his judgment, the portion of sea that 
 the ship had traversed, or the portion of time that had been expended 
 in the voyage, compared with what might be required for its com- 
 pletion. Perhaps the measure of time was considered to furnish the 
 measure of space, as distance is sometimes computed by the number] 
 
 (a) [SloUoy, book 2, cli. 4, sect. 7. There puvty, and without any default on the jiart 
 IS a case in 2 Mo. 397, and 8 Tannt. Soi, in of tlie master or crew — Held, that the ship- 
 wliich a question was raisctl respecting j)ro owner was entitled to the whole of the lump 
 rata freight, but as the decision turned freight without deducting the proportion 
 wholly on the construction of a particular of freight payable in respect of the deck 
 agi-eenient, it has not been uoticetl in this lo.ad which had been lost. JRobiiison v. 
 Treatise.] By a charter-party, the ship was Knifjhfs, 42 L. J. C. P. 211 ; The Merchant 
 to be loaded with a full cargo, and to have Shijiping Co. Limited v. Armitage, 43 L. J. 
 a deck cargo, and being so loaded was to Q. B. 24; Allisun v. Bristol Marine Ins. 
 proceed to Loudon, and " deliver the same Co., 43 L. J. C. V. 311 ; L. E. 1 App. Ca. 209. 
 on bein? paid freight as follows : — A lump (h) Metcalfe v. Tke Britannia Iron 
 sum of 315/. . . . the freight to be paid in IForls Co., 46 L. J. Q. B. 443; L. K. 1 
 cash, half on arrival, and remainder on un- Q. B. D. 613 ; 2 Q. B. D. 423. The con- 
 loading and right delivery of the cargo." signees cannot in general bind the char- 
 The ship arrived in London with the whole terers (S. C). 
 
 of the cargo with which the charterer had (c) Sec the Patria, L. E. 3 A. & E. 436j 
 
 loaded her, with the exception of a deck the Tentonia, L. E. 3 A. & E. 394; the 
 
 load, which had been lost during the voyage cargo ex Galam, 33 L. J. Ad. 97. 
 by one of the excepted perils in the charter-
 
 8. OF TAT^T OP STIPULATED FREIGHT. 381 
 
 [of days' journey. But it is obvious that sucli a mode of computation Chap. 9. 
 
 is very imperfect in its application to a journey by sea^ in which the 
 
 advance depends so much upon the state of the elements. It is 
 obvious also, that, considered with reference to the interests of the 
 merchant, the measure of time or space cannot reasonably be 
 admitted as a general rule ; for if a ship arrive within one day^s sail 
 of tlie place of destination, and be driven or carried back from thence 
 to the place of lading, the merchant cannot possibly be benefited by 
 this ineffectual advance. If the ship put into a port short of the place 
 of destination, the benefit of the merchant must depend upon many 
 contingencies — upon the opportunity of sale there, and the means of 
 further transport. In the case of Luke v. Lyde, the carriage of goods 
 from the port to which the ship was taken to the place of destination 
 Avas higher than from the port of lading to that place. The rule was 
 manifestly considered as applicable to the labour l^estowed by the 
 master, and not to the benefit received by the merchant; to the 
 service performed, and not to the advantage derived from its per^ 
 formance. Whether the rule, so interpreted, be conformable to the 
 principles of justice and equity, may well be questioned. The mean- 
 ing and interpretation of the rule became the subject of discussion in 
 the Court of King's Bench in a more recent case, which I shall now 
 mention, but under circumstances which did not lead to a decision on 
 this point. 
 
 The ship Young Nicholas was chartered for a voyage from Falmouth 
 to Honduras, to fetch a cargo of mahogany and other w^ood from 
 thence to London : the freight to be calculated upon the quantity of 
 Avood, and to be paid one-third upon a right and true delivery of the 
 cargo, and tAvo-thirds by a bill at three months' date from such 
 delivery. The adventure proved highly unfortunate. The ship took 
 in her cargo, but encountered a storm, Avhich compelled her to put 
 into Savannah, in Georgia, to repair, and a part of her cargo was 
 there sold to defray the expense. She sailed again from Savannah, 
 but was taken by a French privateer, and carried towards Guadaloupe. 
 She was re-taken near that island by a British sloop of war, and sent 
 to St. Kitt's, and w^as there driven on shore by a hurricane, and 
 wrecked. The remainder of the cai'go was saved, and Avas afterAvards 
 sold at the instance of the master, without communication with the 
 merchant, and the proceeds AA^re remitted to the owner of the ship. 
 The merchant sued the owner for the recovery of this money : the 
 owner insisted that he was entitled to retain the Avhole or some part 
 in respect of freight. The master had acted to the best of his judg- 
 ment, but the sale was held uuAvarrantable (d). The form of the 
 action was such as to admit of the owner's claim, if it could be 
 substantiated ; and in argument before the court, it Avas questioned 
 Avhether any freight was payable in respect of the goods sold at 
 St. Kitt's; and if any, then Avhether such freight were to be calculated 
 on the portion of the voyage performed in point of time or distance,] 
 
 (rf) See ante, p, 5, et seq.
 
 382 PATAIENT or FREIGHT. 
 
 Port IV, ^QY only on the proportionate diminution of expense between the rate 
 of freight from St. Kittys to London, and from Honduras to London; 
 and whether the freight shoukl he allowed on the quantity of goods 
 sold, or in the proportion which the clear produce of the sale bore 
 either to the prime cost or to the value in London. But the court 
 being of opinion that the owner was not entitled in this case to 
 any freight pro rata, the question as to the mode of computation 
 remained imdccided. The distinction between one of the principal 
 facts of this case and of the case of Baillie v. MoudifjViani, which I 
 have before mentioned, is obvious {a) . In this case, the sale of the 
 goods took place at the unauthorized instance of the master of the 
 ship ; in the other, it took place under the authority of a court of 
 prize, by whose acts the final transport of the goods to the place 
 of destination had been prevented. And in delivering the judgment 
 of the court in the present case, Lord Ellekborough, after com- 
 menting very forcibly on this distinction, proceeded as follows : — 
 " The principles which appear to govern the present action are these : 
 the shipowners undertake that they will carry the goods to the place 
 of destination, unless prevented by the dangers of the seas, or other 
 unavoidable casualties ; and the freighter undertakes that if the 
 goods be delivered at the place of their destination, he will pay 
 the stipulated freight ; but it was only in that event — viz., of their 
 delivery at the place of destination — that he, the freighter, engages to 
 pay anything. If the ship be disabled from completing her voyage, 
 the shipowner may still entitle himself to the whole freight, by 
 forwarding the goods by some other means to the place of destina- 
 tion; but he has no right to any freight if they be not so for- 
 warded, unless the forwarding of them l)e dispensed with, or unless 
 there be some neiv bargain upon this subject (b) . If the shipowner will 
 not forward them, the freighter is entitled to them without paying 
 anything. One party, therefore, if he forward them, or be prevented 
 or discharged from so doing, is entitled to his whole freight ; and the 
 other, if there be a refusal to forward them, is entitled to have them 
 without paying any freight at all. The general property in the goods 
 is in the freighter ; the shipowner has no right to withhold the posses- 
 sion from him, unless he has either earned his freight or is going on 
 to earn it. If no freight be earned, and he decline proceeding to earn 
 any, the freighter has a right to the possession. The captain's 
 conduct in obtaining an order for selling the goods, and selling them 
 accordingly, which Avas unnecessary, and which disabled him from 
 forwarding the goods, was in effect declining to proceed to earn 
 any freight, and therefore entitled the plaintiff to the entire produce 
 of his goods, without any allowance for freight (c).] 
 
 (a) See ante, p. 368. it 'nas held that no such bargain could he 
 
 (J) See the case of Vlierhoom v. Chap- presumed. The Soblomsten, 36 L. J. Ad. 5, 
 
 man, 13 M. & W. 230. in which goods hav- L. R. 1 A. & E. 293; Hopper v. Bnrness, 
 
 ing heen of necessity sold by the master at 45 L. J. C. P. 377, L. R. 1 C. P. D. 137; 
 
 an intermediate port, bona Jide,hni without Molt v. Wilson, 48 L. J. C. P. 764. 
 
 the knowledge of the shipper or the owner, (c) Hunter v. Frinsep, 10 East. 378.
 
 8. or TAET OP STIPULATED FEEIGHT. 383 
 
 [In this case of Hunter v. Prinsep, it will be observed^ that the act Chap. 9. 
 of the master had deprived the merchant of his election to accept the 
 goods at the place of the disaster, or require them to be carried to the 
 port of destination, and that there was nothing in the conduct of the 
 merchant from which a new contract could be inferred. In the case 
 which I am now about to mention, the conduct of the merchant 
 excluded the presumption of a new contract. 
 
 The ship Mayflower was chartered at Hull, to proceed from thence 
 to Shields for a cargo of coals, and sail therewith to Lisbon with the 
 first convoy ; the freight, at the rate of 20/. per keel of coals, to be 
 paid on the right delivery of the cargo. The ship took in her cargo 
 and sailed to Portsmouth, where she joined convoy, and sailed there- 
 with to Lymington, where they were detained some time by contrary 
 winds ; at last the sailing instructions, which the master had received 
 from the commodore, were recalled, and the ship returned to Spithead, 
 the ports of Portugal being shut against British ships by the 
 Portuguese government. The French soon afterwards took posses- 
 sion of Portugal, and continued to occupy it until the present action 
 was brought. At the expiration of about two months from the ship^s 
 return to Spithead, the master formally required the merchants to 
 land the coals; and gave them notice, that unless this was done he 
 would land and warehouse them at their expense and risk, and 
 that he reserved to himself the right of proceeding at law for freight^ 
 demurrage, &c. The merchants replied, ^' If you land the coals, you 
 will take the consequence : we do not consent, if we are to be called 
 upon for freight and expenses.^^ The cargo remained on board the 
 ship nearly two months more, and was then landed by the master 
 after another notice, to which it does not appear that any answer was 
 returned. The coals were afterwards sold by consent of the parties, 
 without prejudice on either side, and produced a clear profit of 
 166/. 185. on the prime cost, after payment of the expense of unload- 
 ing, landing, and warehousing. The master sued the merchant for a 
 compensation for the portion of the voyage performed, and for the 
 detention of the ship. The action was in the same form as in the 
 case of Luke v. Lyde, which was cited in support of the master's 
 claim; but Lord Ellenbobough said, "That was upon the ground of 
 there having been an acceptance of the cargo by the owner in the 
 course of the voyage, which showed his election to receive his goods 
 at that place, instead of having them sent on to the place of their 
 original destination ; hut the acceptance of the goods luas the very 
 substance of the neiv iinplied contract in Luke v. Lyde. But here 
 there has been no agreement to accept the goods; but tliey were 
 landed and sold without prejudice to either party. The case of Luke 
 V. Lyde has been often pressed beyond its fair bearing, but the true 
 sense of it has been explained by my brother Lawrence, in Cook v. 
 Jennings, (d), and my brother Le Blanc, in Mulloy v. Backer [e). 
 Then what does this case amount to? The parties have entered into] 
 
 {d) See ante, p. 377. (e) See ante, p, 379.
 
 384 TAYMEXT OF FEETGHT. 
 
 Part IV. [a special contract^ by whicli freight is made payable in one event 
 
 only, that of a right delivery of the cargo according to the terms of 
 
 the' contract ; and that event has not taken place. There has been 
 no such delivery ; and consequently the plaintiif is not entitled to 
 recover. He should have provided in his contract for the emergency 
 which has arisen^' (a). 
 
 Again, the American ship Neptune was chartered for a voyage from 
 Sandy Hook to Charlcstown, to take in a cargo, and from thence to 
 Tonningcn, Amsterdam, or Rotterdam, there to deliver the cargo to 
 the merchant or his agents, with a proviso, that if advice should be 
 received at CharlestoAvn, before the departure of the ship from that 
 place, that the blockade had been taken off the river Elbe, the 
 merchant should be at liberty to send her to Hamburgh direct, in lien 
 of the other ports. Under this charter-party the ship took in a cargo 
 of sugar and rice at Charlestown in August, 1807, consigned by the 
 bills of ladiug to Messrs. R. Groning and Co., of Hamburgh, to 
 be delivered to them at Tonningcn, (or in case the blockade of the 
 Elbe was taken off, to proceed on to Hamburgh direct), on payment 
 of freight pursuant to the charter-party. In sailing up the Channel, 
 the master received information of the British orders in council 
 issued in November, 1807, directing the capture and condemnation 
 of vessels trading to places at war with Great Britain, or from which 
 the British flag was excluded ; but further directing that all vessels 
 ■which should arrive at any port in the United Kingdom, in conse- 
 quence of information of this regulation received after taking their 
 cargoes on board, should be permitted to proceed upon their voyage 
 to their original port of destination, if not previously unlawful. In 
 consequence of this information, the master brought his ship to 
 Sheerness, and came to London to consult the merchant's agents 
 there. They soon procured his Majesty's license for the ship and 
 cargo to proceed to Rotterdam, or any port in the North Sea, and 
 they urged the master to proceed to Rotterdam. But the master 
 finding that, under a French decree, the ship and cargo might be 
 liable to French confiscation for having touched at an English port, 
 refused to proceed on the voyage ; and, on the one hand, the master 
 offered to deliver up the cargo on being paid his freight and charges, 
 while, on the other hand, the agents refused to receive it, and insisted 
 that he was bound to complete his voyage according to the charter- 
 party. After some time, the master brought the ship to London, and 
 there landed the cargo, and again offered to deliver it on payment of 
 his freight and charges : the agents still refused, and apprehending 
 the master was about to sell the cargo, they applied to the Court of 
 Chancery to restrain hira from so doing, and to compel him to 
 deliver \t to them without prejudice to the merchant's claim of 
 damages for the non-performance of the charter-party. The master 
 insisted that he had a lien upon the cargo for freight and charges. 
 The Lord Chancellor granted the injunction, and directed two] 
 
 (a) Liddard v. Loj)e.t, 10 East, 520. 
 
 i
 
 8. OF r-AUT OF STirrLATEP FT^ETGHT. 385 
 
 - [questions to be tried in a court of la^y ; firsts wlietlier the master was Chap. 9. 
 entitled to any^ and what sum of money for freight on this cargo ; 
 and, secondly, whether he was entitled to any, and what sum of 
 money hy way of compensation for the carriage of the goods from 
 Charlestown to London. In the meantime, the goods were ordered 
 to be delivered to the agents by consent, without prejudice to the 
 rights of the parties. The question came on for trial before Lord 
 Ellen BOROUGH, who is reported to have expressed himself as follows : 
 '^ It is clear that, in this case, the plaintiff can have no claim for 
 freight. Freight could only be earned by performing the terms of the 
 charter-party. Then, is he entitled to any sum by way of compensa- 
 tion for the carriage of the goods from Charlestown to the port of 
 London ? — his right to compensation must arise out of some contract 
 expressed or implied. There is no express contract set up ; and from 
 what can we imply a promise to pay for the carriage of the goods to 
 England ? They are brought here instead of being conveyed to their 
 port of destination, and an application being made to the Lord 
 CiiAxcELLOR, to prevent their being tortiously disposed of by the 
 captain, they were takeu possession of on behalf of the consignee, 
 without prejudice to the rights of the parties. This is no acceptance 
 of the goods short of the port of destination, and no foundation for a 
 promise to pay j'j?'o 7'atd itineris. I am therefore of opinion, that 
 both issues must be found for the defendant." This was accordingly 
 done; and the direction of the learned chief justice was afterwarcb 
 approved of by the Lord Chancellor [a) . 
 
 These cases, therefore, establish that acceptance of the goods is 
 necessary to found an implied contract for the payment of freight 
 pro rata itineris. In the case of Luke v. Lijde, the acceptance was 
 the only ground upon which the implication could be raised, and 
 must have been thought a sufficient ground ; for the master had not 
 offered to carry forward the goods, nor could have done so without 
 hiring another ship, for which he must have paid more than the 
 amount of his full freight. Still, it may be questionable whether 
 acceptance alone shall, in all cases, and as a general rule, be sufficient 
 to raise such an implication, especially if the rateable computation is 
 to be made according to distance or time. To be sure, if the law of 
 England has positively established the duty, a promise to discharge 
 the duty may be inferred in this, as in other cases ; but still the 
 question will remain, Has the law of England so established the duty ? 
 In the case of the ship Neptune, which I have just quoted, the Lord 
 Chancellor afterwards directed the second question to be tried again 
 in a court of law, and ordered the merchant to admit that he had 
 accepted the goods at the port of London, if it should appear that the 
 master could not reasonably have been required to proceed on tlie 
 voyage; considering that if the master could not reasonably have been 
 required to proceed, the merchant ought to have accepted the goods, 
 and his refusal to accept them was an act against conscience, and a] 
 
 (h) Osgood V. Gronlng, 2 Q■^.v^^^h. 4GG. 
 3 C
 
 386 PAYMENT OP pi; EIGHT. 
 
 Part IV. [pi'oper subject for the juristliction of a court of equity^ wliich, on 
 — ' many occasions, places parties in the situation in wliicli they "would 
 stand if that Avhich ought to have been had been actually done. At 
 the second trial, the jury, upon the evidence before them, were of 
 opinion tliat tlie request to proceed to llotterdam was a reasonable 
 request, it appearing that other American vessels had, under similar 
 circumstances, delivered their cargoes in safety at Eotterdam at the 
 same period of time. The fault, therefore, fell upon the master, the 
 verdict at law passed against him, and he was iiltiraately ordered 
 to pay the costs of the suit in equity ; and no decision could be made 
 upon the master's right to compensation generally, or upon the par- 
 ticular amount to which he might be entitled {a). But it is observable 
 that the form of the question directed to be tried, left the right of the 
 master to any compensation open for the consideration of the court 
 of law, even if it should appear that the merchant ought to have 
 accepted, or had accepted, the goods ; for the jury are not directed, in 
 that event, to award a compensation absolutely, but are to try, in the 
 first place, whether the master Avas entitled to any compensation. It 
 seems probable that the carriage of the goods from Charlestown to 
 London was a benefit to the merchant, though a less benefit than the 
 carriage of them to Rotterdam would have been (b) . 
 
 The authority of the Court of Admiralty being exercised upon the 
 ship and cargo in specie, or (which is in effect the same thing) upon 
 the proceeds of a sale made under its own decrees, is very different 
 from that of a court of common law. The nature of this jurisdic- 
 tion, as applied to the subject now under consideration, will be hest 
 collected from the report of the explanation given of it by Lord 
 Stowell, as follows : " In the case of the American ships bound to 
 France or Holland, which were brought into the ports of this country 
 under the prohibitory law, the full freight was pronounced to be due 
 where the owners of the cargoes elected to sell here ; where they did 
 not elect to sell here, the court left it to them to settle the freight witli 
 the owners of the ships. The court considered a voyage from America 
 to this country very iiearh' the same in effect as a voyage to those 
 contiguous countries to which those vessels were originally destined ; 
 in all probability the markets of this country were not less favourable 
 than in the blockaded ports, and no dovibt the sale was eftected with 
 every attention to the interests of the owners of the cargo. In those 
 cases, the court gave the master the full benefit of the freight, not by 
 virtue of his contract, because, looking at the charter-party in the 
 same point of view as the courts of common law, it could not say 
 that the delivery at a port in England was a specific performance of its 
 terms. But there being no contract which applied to the existing 
 state of facts, the court found itself under an oliligation to discover 
 what was the relative equity between the parties. This court ' sits no 
 more than the courts of common law do"" to make contracts between 
 parties ; but as a court exercising an equitable jurisdiction, it con-] 
 
 (rt) {Osgood V. Gronlng,2 Caiupb. 471. (//) [See the utxt section. The cargo was 
 
 ai.il from the paper:) in tlie Ciuiso.] suirar ami rieo, piiiu'iimllv supiir.]
 
 8. OP TART OF STIPFJATED FREIOHT. 387 
 
 [siders itself bound to provide^ as well as it can, for that relation of Chap. 9. 
 
 interests which has unexpectedly taken place under a state of facts out 
 
 of the contemplation of the contracting parties in the course of 
 the transaction " {c). 
 
 The preceding passage has been extracted from the report of a case 
 of peculiar hardship. The British ship Friends, being chartered 
 at Campeachy to deliver a cargo at Lisbon, sailed therewith to the 
 very entrance of the Tagus, and being there warnel off by the 
 blockading squadron, continued some days with the fleet, but was 
 afterwards blown out by a gale of wind, taken by a Spanish priva- 
 teer, retaken by a British cruiser, and carried into INIadeira, where 
 the ship and cargo were sold by the re-captors to pay the salvage. A 
 decree was afterwards made for the restoration of the ship and 
 cargo [d) , and the court was called upon to consider what freight 
 should be allowed under the circumstances of the case. The owner 
 claimed the whole freight, as the ship had gone up to the very mouth 
 of the destined port; the merchant contended that nothing Avas due, 
 because the cargo was not delivered according to the terms of the 
 charter-party. The learned jvulge, explaining the nature of his juris- 
 diction in the words that have been just quoted, and considering the 
 calamity as common to both parties, and not attributable solely 
 to either, for the ship could not have entered the port in ballast, nor 
 the cargo in any other ship, thought that equity suggested a division 
 of the loss, and directed a moiety of the freight to be paid [e) . 
 
 It may be proper to remark, that in this case the learned judge did 
 not apply the rule of payment pro rata itineris in the same strict way 
 in which it was applied by the court in Luhe v. Lyde (/), and by the 
 opinion of Lord Mansfield in Baillle v. Moudigltani {(/). The 
 only essential difference between this case and Luke v. Lyde is the 
 acceptance of the cargo : for there the cargo was burthened with 
 salvage to the amount of one-half, and the court dealt with that cir- 
 cumstance by considering half the cargo as actually lost, and half 
 only as delivered and accepted. 1\\ Bailliew. Moudigliani the whole 
 liad been originally sold, as here, under the decree of a court of com- 
 petent jurisdiction, and the subsequent award of restitution could 
 operate only upon the proceeds of the sale.] 
 
 The ship Jane [h) was chartered by an agreement, not under seal, to 
 proceed with a cargo of coals from London to Solada, in the river 
 Plate, and either there or at Buenos Ayres deliver the same, there 
 reload and proceed to a port between Gibraltar and Antwerp, as the 
 freighter's agents might direct ; freight for the voyage out and home 
 1,300/, in full, if delivered at Gibraltar, a port in Spain, or London, 
 or Liverpool, to be paid as follows : 200/. in London on the vessel 
 being despatched from Portsmouth ; cash for the necessary expenses 
 of the vessel in the river Plate, to be advanced there at the cuirent 
 
 (o) Tlie Friench, 1 Edw. Ad. Rop. 21G. (/) See anie, p. 3/4. 
 
 ((/) [Probably tbis must mean of the pro- (g) See ante, p. 376, 
 
 ceeds, deducting tbe salvage, &c.] (//) 31ilcfif1l v. iJarlhez, 2 Bing-. X, C 
 
 (e) The Friends 1 Edw. Ad. Rep. 2 If. 5.-,.-^. 
 
 '.I t' 
 
 o
 
 38S TAYMEXT or TEEIGHT. 
 
 Part IV. I'ate of excliaugc upon London free of commission ; and tlie remainder 
 
 to be paid on final delivery of the homeward cargo in cash. 
 
 The vessel sailed from Portsmouth, and the history of the voyage is 
 detailed in the judgment of the Coiu't of Common Pleas. '^In this 
 case/'' said Chief Justice Tindal, " two questions arise : first, whether 
 the plaintiff is entitled to recover the full freight agreed to be paid by 
 the charter-party ; and, secondly, if not entitled to recover the full 
 freight, whether he is entitled to recover any, and what freight, 
 jtro rata itiner'is. 
 
 " First, in order to entitle the plaintiif to recover the fnll freight, 
 he must establish that he has performed the voyage prescribed by the 
 charter-party. The first part of the voyage was duly performed by 
 the arrival of the ship at Buenos Ayres, and a destination for the 
 accomplishment of the homeward voyage Avas given by the freighter 
 there, who appointed Gibraltar as the port of discharge. But the 
 plaintiif never performed that homeward voyage, either in the ship 
 mentioned in the charter-party, or in any other. The original ship 
 and about one-third of the cargo having been lost by the perils of the 
 seas, the remainder of the cargo was left at the island of Fayal by the 
 master, who on the 12th of July sailed in another vessel for England, 
 having left instructions with the vice-consul at Fayal to forward the 
 remainder of the cargo (about two-thirds) by the earliest opportunity 
 to Gibraltar; the master having been wrecked on the next day, 
 returned to Fayal, and remained there until the 24th of July, when 
 he again sailed for England, having on the 23rd addressed a letter to 
 the vice-consul, stating his having been informed of the expected 
 arrival of a vessel originally destined for Xewfoundland, and recom- 
 mending the vice-consul, if he could not obtain a reduction of 400/. 
 for the freight, to give that sum for the conveyance of the remainder 
 of the cargo to Gibraltar, rather than an opportunity of sending the 
 cargo forward should be lost. No authority appears to have been given 
 to the vice-consul to make any contract for the hire of a vessel on 
 account of the owners of the Jane. The master of the Jane certainly 
 did not make any, nor did he personallij jnake provision for the convey- 
 ance of the remainder of the cargo to its destination, much less super- 
 intend its transhipment, or accompany if to the port of discharge. 
 Before his departure from Fayal, no vessel of sufficient capacity to 
 convey it had arrived at Fayal ; but on the 29th of July such a vessel 
 had arrived, and the vice-consul chartered the vessel on behalf of the 
 OA\Tiers of the cargo of the Jane, at a freight of 360/. for the convey- 
 ance of goods to Gibraltar. Under this charter-party, the vessel so 
 hired by the vicc-ccnsul on behalf of the owners of the cargo sailed 
 to Gibraltar and delivered it to them, who received and paid freight 
 and charges 378/. Under these circumstances, it appears to us that 
 the goods which were so left by the master of the Jane, at Fayal, 
 having been forwarded to Gibraltar by the vice-consul, acting in tiie 
 name and on behalf of the owners of the cargo, and at their expense, 
 cannot be said to have been carried to their destination by the owner 
 of the Jaiic, in fulfilment of tlic ehartcr-])arty entered into with the
 
 8. OF TAET OF STIPCLATED FKEIGHT. 3g^ 
 
 defendants, and consequently tliat tlie frciglit stipulated to be pai;l l;y Chap. 9. 
 the charter-party has not been earned. . — ^ 
 
 " The next question is, ^vliether anything in the nature of freiglit 
 is recoverable by the plaintiff upon a new and implied contract, 
 founded on meritorious service rendered, to the defendants by the 
 plaintiff, in the partial performance of the voyage contemplatecl, and 
 the acceptance of the goods by them under the circumstances stated 
 in the case. The carriage of the goods from Fayal to Gibraltar not 
 liaving been the act of the plaintiff, we are of opinion that no claim 
 to freight can be made by the plaintiff for that portion of the voyage. 
 And we are also of opinion that the plaintiff has no right to claim 
 any freight ijro rata itineris for the outward voyage from England to 
 Buenos Ayres. 
 
 " The freight for the entire voyage was a gross sum of 1,300/., of 
 which 200/. was to be paid in England, in cash for the necessary 
 expenses of the vessel in the river Plate, and the residue at Gibraltar, 
 at the current exchange upon London. If the vessel had arrived at 
 Buenos Ayres, and had been lost immediately afterwards, we think 
 that nothing beyond the 200/. paid, in London could have be?n 
 claimed. But as she actually brought from Buenos Ayres to Fayal, 
 on her way to Gibraltar, a considerable portion of the cargo put on 
 hoard at Buenos Ayres, which portion has come to the hands of tlie 
 freighters, and been accepted by them, the question arises, AVhether 
 the shipowner has not a claim to freight pro rata for the conveyance 
 of that portion of the goods from Buenos Ayres to Fayal ? — and upon 
 the best consideration which we can give to the case we think he has 
 such claim. 
 
 " We have already said that the goods Avere forwarded by the vice- 
 consul, acting as the agent of the freighters ; but the vice-consul Avas 
 desired by the master of the Jane to forward, them, though not desired 
 to forward them on behalf of the shipowner. The agents of the 
 freighters at Gibraltar have accepted the goods, paid the freight, and 
 thereby recognised the act of the vice-consul as their agent. The 
 case, therefore, must stand in the same position as if the freighters 
 had accepted the goods of the master of the Jane at Fayal, and con- 
 veyed them on their own account to Gibraltar ; in which case we 
 think that they would be liable to pay freight for that portion of the 
 voyage in respect of the goods accepted. At what rate the freight is 
 to be calculated is the remaining question to be considered, and we 
 are of opinion that the shipowner, under the circumstances of this 
 case, cannot claim any remuneration beyond reasonable freight from 
 Buenos Ayres to Fayal, the amount of which the arbitrator will deter- 
 mine. The freight agreed upon by the charterer was not of an ordinary 
 kind, but a gross sum to be paid in case of the performance of an ex- 
 traordinary voyage. That voyage has not been accomplished; the 
 voyage was not in its nature divisible, so as to give to the shipowner 
 a claim to any aliquot part upon the performance of a certain portion 
 of the voyage. The claim of the shipowner must, therefore, rest upon 
 an implied contract to remunerate him for service performed, not
 
 390 PAYMENT OF FREIGirT. 
 
 Part IV. according to tlic agreement, but a service from Avhicli the freighters 
 """ liave received a benefit ; and Avhether, upon the whole, the shipowner 
 has been overpaid or not, will appear Avhen the account is taken by 
 the arbitrator on this principle between the parties/^ 
 
 It will be seen, from the report of this case, that it was contended, 
 on the part of the plaintiff, that in chartering another ship, for the 
 conveyance of the cargo from Fayal to its destination^ the consul 
 acted as the agent for the shipowner, and that the latter had thereby 
 performed his contract. If the facts of the case had supported that 
 position, it is probable that the plaintifis would have been considered 
 entitled to the whole freight, as stipulated by the charter-party ; but 
 the Court of Common Pleas was of opinion, that the consul acted as 
 the agent, not of the shipowners, l)ut of the owners of the cargo. The 
 former having failed to convey the goods to their destination, was 
 held not entitled to receive the freight for Avhich he had stipulated ; 
 and the merchant, who had accepted the goods at a place short of 
 their destination, was considered to have entered into an implied con- 
 tract to remunerate the shipowner for such service as he had actually 
 performed. 
 
 In the case of Shij)ton v. Thornton [a], the plaintiff in assumpsit 
 brought this action for freight, in respect of certain goods and 
 merchandise carried and conveyed from Singapore to London, and 
 there delivered to the defendant. 
 
 It appeared on the trial, that in January, 1836, the agent of tlic 
 defendant shipped at Singapore, on board the James Scott, belonging 
 to the plaintiff, certain goods under a bill of lading, by which it was 
 stipulated, " that the goods Avere to be delivered at the port of London 
 to Richard Thornton, Esq., or his assigns, he or they paying freight 
 for the said goods as per margin. The James Scott proceeded on her 
 voyage with a general cargo, but encountering severe gales was 
 obliged to put into Batavia ; and on her arrival there, in consequence 
 of the damage to the ship and cargo, a transhipment was found 
 necessary ; and the cargo, including the goods of the plaintiff, was 
 transhipped to the Mountaineer and the Sesostris, and bills of lading 
 Avcre drawn for delivery of the cargoes to William Ellward, Esq., or 
 his assigns, he or they paying freight. On the arrival of the last- 
 mentioned A'cssels with their cargoes in London, the defendant claimed 
 and obtained both parcels of goods, under the bill of lading per James 
 Scott, but contended that he Avas only bound to pay freight pro rata 
 from Singapore to Batavia, and the actual freight per Mountaineer 
 and Sesostris. 
 
 Lord Denmax, delivering the judgment of the Court of King's 
 Bench, said : " Upon the trial it appeared that the plaintiff' had been 
 paid freight by the James Scott, at the rate originally agreed on, for 
 so much of the voyage as had been performed up to the ship's arrival 
 at Singapore, and for the remainder of the voyage to London, at the 
 rate at Avhich he had contracted for the carriage of the goods by the 
 
 (a) 1 Per. & Dav. 216; ante, p. 314; J/«r/«e Lis. Co., 36 L. J. C. V, 156; 
 9 Ad. & E. 314. See Kidston v. Empire Matthev^s v. Gibbe 3 E. & E. 282.
 
 9. wiiKN j;i(iiiT TO fi;eioht l'dmmkxces. 391 
 
 Mountaineer and the Sesosfris. The action avus bronght for tlic Chap. 9. 
 difference between the two rates for that portion of tlie voyage ; and 
 it was objected^ that for this portion of the voyage, he was not 
 entitled to receiA^e more than he had actually paid ; Avhile, on the part 
 of the plaintiff, it was contended that the necessity of the tranship- 
 ment being assumed, Avhich it must be for the purpose of the argu- 
 ment, the Mountaineer and Sesostris were to be considered as the 
 James Seott ; that the master had fulfilled his undertaking in carrying 
 the goods to their destination, and had therefore eai-ncd his full freight, 
 while it was a matter of indifference to the owner of the goods whether 
 they had arrived safe by one vessel or the other. No authority, bear- 
 ing directly on the point, from our own law books, was cited on either 
 side in the argument. It was treated very much as a new point, to be 
 decided on principle, and our own researches have led us to the same 
 conclusion. On the part of the defendant, we were pressed Avith the 
 impolicy of holding out any temptation to the shipowner or master 
 to make unnecessary transhipments of goods ; the inconvenience of 
 any transhipment, whereby the goods themselves run the hazard of 
 damage, the policy of insurance may become questioned, and the 
 owner of the goods, at all events, loses the benefit of a conveyance by 
 that vessel in which he may be supposed to have confidence, and for 
 which, at all events, he has stipulated. All these circumstances, 
 coupled with a consideration of the unprotected state in which his 
 interests are at a distant port, must certainly be allowed to have great 
 weight. But, after all, these seem to point to a vigilant examination 
 of every case of transhipment, to see that its necessity be well estab- 
 lished, rather than to decide the present question. This must turn 
 upon the nature of the contract between the parties, as it is to be 
 collected from our own books, and still more fully, perhaps, from 
 those foreign laws and ordinances, as well as the writings of those 
 jurists to which our courts have been long accustomed to have 
 recourse for guidance on subjects of this nature. '^ 
 
 His lordship, after an elaborate review of the foreign authorities 
 on the subject of transhipment, for Avhich the reader is referred to 
 a previous chapter of this work {/)), delivered the judgment of the 
 court that the plaintiff was entitled to recover the difference he 
 sued for. 
 
 1). Il'hen the Kight to Freight Commences. 
 
 [But as the right to freight does not commence until the ship has 
 broken ground and begun the voyage, no partial payment can be 
 claimed for goods laden on board, if, even without the fault of the 
 master, the ship is prevented from actually setting forth on the 
 voyage. And, therefore, in the ease of a ship Avliich took on board a 
 cargo in Salt lliver in Jamaica^ at a very great expense to the owners] 
 
 (6) Allien p. 314.
 
 392 PAYMEM' OF FEEKillT. 
 
 Part IV, [(who l)y the usage of the West India trade fetch tlic cargoes from 
 
 the shore at their expense)^ and which actually cleared out for the 
 
 A-oyagCj butj Avhile waiting for convoy^ was cut out of the v'wqy by 
 two French privateers; and being afterwards retaken^ Avas carried 
 into Port Royal, where the cargo was sold under an order of tlie 
 Court of Admiralty, and the proceeds thereof, with the deduction of 
 salvage, paid to the merchants : it was decided tliat nothing could be 
 claimed of the merchants, although each of the judges expressly 
 recognised the rule of the marine law^ as to the partition of freight 
 2Jro rata Hineris ; the court holding, that in this case there had 
 been no commencement of the voyage, and therefore no freight 
 could be due ; and that, as the freight was by the contract the only 
 remuneration of all the services performed by the owners, they were 
 not entitled to any recompense for the expense of taking the goods 
 oil board («).] 
 
 10. Of Entire, Divided, and Intermediate Voyayes. Freif//tt 
 how jjaijable. 
 
 [It often happens that a ship is hired by a charter-party to sail 
 from one port to another, and from thence back to the first : as, for 
 instance, from London to Leghorn, and back from thence to London, 
 at a certain sum to be paid for every month or other period of the 
 duration of the employment. L'pon such a contract, if the whole is 
 one entire voyage, and the ship sail in safety to Leghorn, and there 
 deliver the goods of the merchant, and take others on board to be 
 brought to London, but happened to be lost in her return thither, 
 nothing is due for freight, although the merchant has had the benefit 
 of the voyage to Leghorn; but if the outward and homeward voyage 
 are distinct, freight Avill be due for the proportion of the time employed 
 in the outward voyage (b) . 
 
 Upon this point ^Nlalyne mentions a remarkable case of five ships, 
 in which lie himself was interested as one of the merchant-freighters. 
 The whole five were freighted out from this country for Leghorn and 
 Civita Yccchia, and back from those places. They all performed their 
 outward voyage, but before any part of the homeward cargo was 
 shipped, they all set sail and came away, through fear of being taken 
 by the galleys of Don Andrea Doria, who intended to surprise them, 
 the Grand Armada being then preparing in Spain. Two of the ships 
 had waited for their lading the whole time stijiulated by their charter- 
 parties, and the masters had made their protests against the factors 
 who should have laded them. These two, says the author, were by 
 the law of the Admiralty adjudged to have deserved their whole freight. 
 Two othcj's, not having waited the stipulated time, could not be found] 
 
 («) CurVivg v. Lonfj, 1 Bos. & Pul. 634. Bright v. Coioper, with a reference to 
 
 (6) [This proposition is laid clo\\ ii hy lirowTilow, in whose report the jwiut does 
 
 Molloy, book 2, ch. 4, s. 9 ; and he cites in not appear.] 
 
 support of it the hefore-uientioucd ease of
 
 I 
 
 lO. OF DIVIDED VOYAGES, ^C. 39 
 
 [to have deserved any freight at all, althougli they were laden outward. Chap. 9 
 
 The lifth ship also had not waited the stipulated time; but her charter- 
 
 party contained a proviso, that if she should be taken or cast away on 
 her return out of the Streights, the freight outwards^ which Avas 
 accounted half, should be paid; and that half^ and no morCj was 
 adjudged to the master (c). 
 
 It should seem that this proviso, in the case of the jfifth ship, occa- 
 sioned the outward and homeward voyages to be considered as distinct 
 voyages^ for the event mentioned in the proviso had not happened. 
 And a similar construction was given to a very different charter-party 
 in the following case {d) . Mackrell, the owner of a ship called the 
 Richard, lying in the river Thames, let his ship to freight by a charter- 
 party, dated 9th jMarch, 1774, to Simond and Hankey, ^"'by the 
 month, for such time as she should be employed in performing a 
 voyage from London to Plymouth and the island of Grenada, and 
 from thence back to London," whereby the plaintiff covenanted, 
 *' that the ship should, pursuant to the orders and directions of the 
 freighters, their factors or assigns, prosecute and perform the voyage 
 above-mentioned (the dangers and perils of the sea, and the restraint 
 of princes and rulers excepted), and should in such outward and 
 homeward voyage load and unload all lawful goods ;" and that his 
 ship^s company and boats should aid and assist in unloading and 
 reloading the said ship^s cargoes, as customary at the island of 
 Grenada, and that he would pay all port-charges and pilotage. In 
 consideration whereof, the defendants covenanted that they " would 
 load and unload the ship, and give the master proper orders in 
 respect thereof ; and that the ship should be discharged out of her 
 said monthly employ on the delivery of her liomew^ard cargo in 
 London, and also should and would well and truly pay or cause to 
 be paid to the said owner, his executors, administrators, or assigns, 
 in full for the freight and hire of the said ship, at the rate of 110/. 
 sterling per calendar month, for all such time as the said ship 
 should be taken up in performing the voyage aforesaid, to com- 
 mence and be accounted from the day of the date of the said charter- 
 party, and to end and determine on the day of the discharge of 
 the homeward cargo at Ijondon, and to be paid one-third part 
 thereof on her report inwards at the (/ustom-house, London, and the 
 remaining two-third parts thereof in two calendar mouths then next 
 foUowing.^^ 
 
 In pursuance of this charter-party, the ship took in goods belong- 
 ing to the merchants Simond and Hankey, at London, sailed with 
 them to Plymouth, and there took in other goods belonging to them, 
 and from thence proceeded to Grenada, and there landed the cargo ; 
 and received another cargo from the merchant's factor there, with] 
 
 (c) Malyne, p. 98. to Grenada ; in the second, up to the day 
 
 (d) \Maclirellv. Simond and M'anlce^i m of the loss of the ship. The defendants 
 K. iJ. in Trinity Term, 16 Geo. 3. It was demurred to both counts. Judgment was 
 an action of covenant on the charter-party, given for the plaintiff on tlic first count, 
 in the first count of which the plaintiff and for the defendants oil the second.] 
 claimed freight for the period of the voyaa:e
 
 o94 TAVMLINT OF FJJEKIIIT. 
 
 Part IV. [which she set sail for Loiuloii; but on tlie wav was lost by tempest. 
 The voyage to Grenada occnpicd three mouths; and five mouths 
 elapsed in the whole before the loss of the ship. After tlie misfor- 
 tune, the owner brought an action against the merchants, claiming 
 of them the payment of freight either for three or for fire mouths. 
 The merchants insisted that nothing Avas due. The court decided 
 that the freight was payable for three months, the period of the out- 
 ward voyage. And Lord !Mansfii:ld delivered iiis judgment to the 
 following effect : " This question depends upon the construction of the 
 charter-party. If the parties have expressed their meaning defectively, 
 the court must be guided by the nature of the thing. The charter- 
 party puts no case but that of a prosperous voyage out and home ; it 
 provides for freight on the supposition that the ship Avill arrive safe 
 and report her cargo. No provision is made for any other case. If 
 the ship be cast away on the coast of England, aud never arrive at the 
 ])ort of London, yet, if the goods are saved, freight shall be ])aid, 
 because the merchant receives advantages from the voyage. This is 
 not expressed by the charter-party, but arises out of the equity of the 
 case. Freight is the mother of Avages — the safety of the ship the 
 mother of freight : that is the general rule of the maritime law. If 
 there be one entire voyage out and in, and the ship be cast away on 
 the homeward voyage, no freight is due, no Avages are due, because 
 the Avliole profit is lost ; and by express agreement the parties may 
 make the outward aud homeward voyage one. Nothing is more 
 common than two voyages ; wherever there are two voyages, aud one 
 is performed, and the ship is lost in the homeward voyage, freight is 
 due for the first. Here the outAvard and homeward A'oyage are so 
 called in the charter-party. The cargo is loaded outwards, and the 
 OAvner covenants to pay port-charges on the outAvard A'oyage. The 
 whole of that A'oyage Avas completed : port duties are incurred and 
 paid. Nothing, however, is due on the homeward voyage, though the 
 ship might be out a mouth. ^' 
 
 In the folloAviug case {a), the Avords of the charter-party being 
 different, a different construction prevailed. One Pattinson, master 
 and part-owner of the ship William and Manj, lying at Liverpool, by 
 a charter-party, dated 28th July, 1794, let the ship to freight to 
 Byrne and others, for a A'oyage intended to be made from Liverpool to 
 the island of Madeira, and from thence to the island of Barbadoes, 
 and from thence back to Liverpool, Greenock, or Bristol, but Avith 
 liberty for the freighters to order the said A'cssel from Barbadoes to 
 any other island in the West Indies (Jamaica excepted) , they paying 
 all pilotage and port charges incurred thereby. And the said 
 freighters, accordingly, by the said charter-party took and hired the] 
 
 (a) \_Btn-ne v. Fatfinson, iu Iv. B. Trinity to Barbadoes, and for the disbursements 
 
 Term, 37 Geo. 3. Tlie question arose on a and port-cliarges of the ship at Madeira 
 
 set-oft", pleaded by the defendant, the master and on the voyage, and for work and hibonr 
 
 of the ship, to an action brought against generally, and money paidj so that the 
 
 liim on audther account by the merchant. decision did not turn upon the form of the 
 
 The plea did not refer to the chartcr-i>arty, proceedings in the cause. The question 
 
 but was for the freight and hire of the sliip came before the court by a special case 
 
 from Liverpool to Madeira, and from thence reserved from the assizes.]}
 
 to. OF DIVIDED VOVACfES, &C. 395 
 
 [same in maimer following, that is to say, tliat tlie master should Chap. 9. 
 
 immediately receive and take a cargo on board the said vessel from 
 
 the freighters, aud the said vessel so loaded should immediately pro- 
 ceed direct to Madeira, and deliver such goods as should he ordered 
 by the said freighters, and also should receive and take on board the 
 said vessel at Madeira such other goods as the said freighters might 
 think proper to ship ; and that being done, the master should proceed 
 ■with the said vessel to Barbadoes, and there make delivery of her 
 cargo, and receive and take on board a cargo from the freighters, and 
 being loaded therewith, should, with the first opportunity, proceed 
 direct to the port of Liverpool, Greenock, or Bristol, and there deliver 
 the same cargo, and so end the said intended voyage. In consideration 
 of which, the said freighters thereby promised and agreed, amongst 
 other things, to pay to the defendant in full for the freight and hire 
 of the ship for the said voyage the sum of 136/. \0s. per calendar 
 month, for six months certain, to commence in eight days after she 
 was ready to receive the cargo at Liverpool, and to continue until she 
 was discharged at Liverpool, Greenock, or Bristol, together with two- 
 thirds the amount of all pilotage and port-charges that might accrue 
 and be paid during the course of the said voyage, with customary 
 primage ; payment thereof to be made in manner following — viz., 
 136/. 105. to be advanced before sailing from Liverpool, by a good 
 bill at three months' date, and what cash might be required for the 
 said vessel's disbursements aud port-charges at Madeira and Barba- 
 does, to be paid in part of the said freight, and the remainder of the 
 said freight should become due, and be paid on the final discharge of 
 the said vessel at Liverpool, Greenock, or Bristol, by good bills on 
 London at three months^ date. The period of computation com- 
 menced on the 7th of August, 1794; on the 19tli of that month the 
 ship sailed from Liverpool for INIadeira, freighted with goods, and 
 arrived there on the 19th of September, and discharged at that place, 
 by the 4th of October, as many of the goods as were to be delivered 
 there, and took on board, on account of the merchants, ninety pipes 
 of wine, and sailed from thence, on the 9th of October, for Bar- 
 badoes ; but, on the 10th of November, was captured on the way 
 thither. The merchants had paid 135/., part of the freight for the 
 first month, and also the port-charges and disbursements for the ship 
 at INIadeira. Pattinson now claimed in the present suit further 
 freight from the 7th September to the day of the ship's capture, or 
 to the day when she had completed the delivery at Madeira, or freight 
 for the goods delivered there, at the usnal rate of conveyance, allow- 
 ing the 135/. But the court held that he had no claim whatever. 
 On his part it was contended that there ought to be an apportion- 
 ment in this case ; and the passage before cited from Malyne, relat- 
 ing to a ship lost at Dover, was quoted as an authority in his favour. 
 But Lord Ken YON said : ''In that case the goods came to the mer- 
 chant's hands, and the owner of the ship might have provided 
 another ship to carry them to Loudon ; in this case, by the terms of 
 the contract, the freight is to become due at Liverpool^ and therefore 
 it cannot he claimed before,"]
 
 )96 PAYMENT OF FREIGHT. 
 
 Part IV. [These two cases may serve as a guide for the construction of other 
 ■ charter-parties on the same subject^ or for the framing of a charter- 
 party in such a manner as to express the real meaning of the con- 
 tracting parties^ Avithout ambiguity. 
 
 By a charter-party, made for a voyage from London or Portsmouth 
 to Monte Video, and back to some port of discharge in Great Britain, 
 •with a provision that the master should touch at the coast of Africa 
 for a certain purpose, if required, tlie freighter covenanted to pay 
 C)70I, per month, for every calendar month the ship should be 
 employed by him, the freighter, during the said intended voyage to 
 Monte Video, and back to her port of discharge^ and so in proportion 
 for any less time, in full for the hire of the ship during her intended 
 service ; such freight to commence from the day the ship should be 
 ready to receive goods on board at Portsmonth, and end when she 
 should have finally discharged the whole of her said cargo ; and also 
 pay two-thirds of all pilotage and port-charges during the whole of 
 the voyage, and also two-thirds of all expenses of stowing the said 
 ship's cargo at Montevideo; such freight, pilotage, and port-charfjes 
 to be paid on the arrival and discharge of the ship at her destined 
 port in Great Britain. Ujion this contract, an action was brought 
 against the freighter, and it was alleged, on the part of the owner, 
 that the ship took in such goods at Portsmonth as the freighter 
 thought fit to lade, and then proceeded on the voyage, and touched 
 at the coast of Africa as reqnired, and, in the prosecution of the 
 outward voyage, w\as, before her arrival at Monte Video, without the 
 fault of the owner, master, or crew, by persons unknown, wrongfully 
 seized and sent to London, and there detained for a considerable 
 time, but after\Tards liberated and restored to him : that he then 
 made the necessary repairs, and having properly fitted, victualled, 
 and manned the ship, gave notice thereof to the freighter, and offered 
 to prosecute and complete the voyage, and required from him the 
 necessary directions for that purpose, but that the freighter refused 
 to give any directions^ or to permit the ship to pursue the voyage, 
 and wholly renounced the charter-party, and discharged the owner 
 from further prosecuting the voyage. It was further alleged that the 
 ship had been employed in the voyage twelve months, and that the 
 freight thereof amounted to 8,0-iO/. ; that she would have been 
 employed for twelve months more, if the freighter would have per- 
 mitted, and the freight thereof would have amounted to anotlier sum 
 of 8,0-10/., and that two-third parts of the pilotage and port-charges 
 during the voyage amounted to 50/.; and the complaint was, that the 
 freighter, who had been requested to pay these sums, had refused to 
 do so. So that by the form of the action the OAvner claimed to 
 recover the freight, &c., as due, and not to recover damages against 
 the freighter for refusing to allow him to prosecute the voyage {a) . 
 And on behalf of the owner it was contended, that as he had done all] 
 
 (a) [It is not clear that the charter-party freighter that would have furuished a 
 contained any covenant on the part of the ground for such an action for damages.]
 
 10. OP DIVIDED VOYAGES, &C. 397 
 
 [in his power toward the completion of the voyage^ and the further Chap. 9. 
 
 prosecution and completion of it were prevented by the freighter, he 
 
 had acquired a right to the sums demanded as freight, &c., as fully as 
 if the voyage had been performed, and the ship had arrived and been 
 discharged at her destined port. But the court, adverting to the 
 particular terms of the contract, whereby the freight, &c., were made 
 payable for the arrival and discharge of the ship at her destined port 
 in Great Britain, and considering that the efforts of the owner could 
 not possibly insure this event, which might be defeated by the act oE 
 God, and various accidents, to which marine adventurers are subject, 
 held this not to be one of those cases in which an offer to perform an 
 act, if refused by the party to be charged by the performance, is 
 equivalent to performance itself, and consequently that the owner 
 was not entitled to recover the freight, &c., which he claimed in this 
 action {b). 
 
 Also, in the case of a ship wliicli arrived with a cargo at Naples, 
 where tlic cargo was seized by the government, and so the master was 
 prevented from delivering it to the consignee of the merchant; it was 
 held that the merchant was not liable to pay the outward freight (c) . 
 Again, Avhere by charter-party a ship was hired to receive a cargo in 
 Ijondon, and proceed to such places as the merchant should direct, and 
 there unload, reload, and return from thence to London, and it was 
 agreed that the ship should continue in the service six calendar months 
 at least, and for such further time as would be necessary to complete 
 the voyage, and the merchant covenanted to pay to the owner for the 
 use of the ship a certain sum per ton per month, during the term of 
 six calendar months at the least, and so in proportion for a less time 
 than a whole month, and at the like rate for such further time, if any, 
 and until her final discharge in London, or up to the day of her being 
 lost, captured, or last seen or heard of, such freight to be paid to the 
 master in cash, in manner following — viz., so much as might be earned 
 at the time of the arrival of the ship at tJie first destined port abroad, 
 to be paid within ten days after arrival- at such port, and before the 
 delivery of the cargo, and at the expiration of every month after that 
 period the freight to be paid iip from time to time, during the con- 
 tinuance of the ship in the service, and the residue or balance on the 
 day the ship should be finally discharged from the service ; and that 
 in default of payment of any part, the master might retain and sell so 
 much of the cargo as might be sufficient to cover the amount. And 
 there was a proviso in the charter-party, that the merchant might at 
 any time during the voyage purchase the ship for a specified sum, 
 upon paying the freight that might be earned up to the time of such 
 purchase. And, in fact, it happened that the ship was lost by perils] 
 
 {I) [Smith V. Wilson, 8 East, 437. It was murred. Upon the argumeufc, the court 
 
 an action of covenant; tlie facts stated in disregarded tlie pleas, and gave jud^'ment 
 
 the text were contained in the phxiutiff's against the plaintiff upon the declaration.] 
 
 declaration. The defendant pleaded some See Crozier v. Smith, 1 Scott, N. R. 331. 
 special pleas, to which the plaintiff de- (c) Storer v. Gordon, 3 M, & S. 308,
 
 398 
 
 PAYMENT or f'RETGHT. 
 
 Part IV. [of the sea before lier ari-ival at her first destined port, It was decided 
 
 that nothing was payable (a). 
 
 In all these eases the conrt thonghtj that^ according to the trne 
 construction of the contract, the payment was made to depend upon 
 an event which never happened.] 
 
 11 . Of the Jurisdiction exercised by the Court of Admiralty respecting 
 the Freif/hf of Goods condemned as Pri::e. 
 
 The Courts of Admiralty, where the question of freight comes 
 collaterally before them in the case of captured ships ordered to 
 be restored, take an equitable view of the case, without assuming 
 to make a new contract between the parties, they presume their 
 consent to such a contract as equitably belongs to a new state of 
 things, not originally within their contemplation. Accordingly, 
 ■where a ship having been captured at the very mouth of the port 
 to which she was destined, was afterwards retaken and sold for 
 salvage, but the ship and cargo, upon a suit in the Admiralty, were 
 ordered to be restored, the court directed a moiety of the freight 
 to be paid, though the merchant insisted that none was due, because 
 the whole voyage had not been performed ; while the owner claimed 
 the whole freight, because he had reached the mouth of the river {b) . 
 
 If in a time of Avar a neutral vessel, carrying goods belonging to 
 the subjects of one of the belligerent powers, be taken by those of 
 the other (in which case the goods are lawful prize, but the ship is to 
 be restored) , the captor pays the Avhole freight, because he represents 
 the enemy, by possessing himself of the enemy's goods /«;•<? belli; and 
 although the whole freight has not been earned by the completion of 
 the voyage, yet, as a cajjior, by his act of seizure, has prevented its 
 completion, his seizure shall operate to the same effect as an actual 
 delivery of the goods to the consignee, and shall subject him to the 
 
 (a) IGlbhon v. Mendez, 2 B. & A. 17.] By 
 a cliarter-p.arty, the vessel was to sail Irom 
 Loiulon with a cargo for Kingston, or any 
 other port in Jamaica; and, having dis- 
 charged the same, receive on board a cargo 
 fronrthencc, or from a port on the Spanish 
 Main if required, and deliver the same at a 
 port in the United Kingdom — freight to be 
 paid, 250/. in ten days after sailing from 
 Gravesend, and 7.50/. more in two months 
 after a right delivery of the homeward 
 car"-o at her port of discharge in the United 
 Kingdom, provided she shonld be required 
 to proceed to one port only in .Jamaica, and 
 25/. more should she be required to go to 
 two or more ports in that island ; and in 
 case the vessel should be ordered to the 
 Spanish Main, \L per day was to be paid 
 for every dav after the twenty-sixth 
 
 day after her arrival at Jamaica, until 
 despatched from her loading port. Demur- 
 rage, 100/. per month, or in proportion for 
 a less period, payable on settlement of the 
 hire of the vessel. The vessel sailed from 
 London, and discharged a portion of her 
 outward cargo at Kingston, and the residue 
 at another port in Jamaica, and sailtd 
 thence to a port in the Spanish Main to 
 receive a homeward cargo, and there re- 
 mained one hundred and thirty-nine days 
 beyond the stipulated twenty-five days. — 
 Held, that the 4/. per day was not payable 
 until two months after the delivery of the 
 homeward cargo at the shi])'s port of dis- 
 charge in the United Kingdom. Crazier v. 
 Smith, 1 Scott, N. K. 338. 
 
 (6) The Friends, 1 Edw. Ad. Rep. 186. 
 As to Prize Courts, see aiUe. \>. IC, note(f/).
 
 11. WHEX OOODS rONDE:\lNEri A^ PKMZK. 399 
 
 payment of the full freiglit (c) . This, however, is to be understood Chap. 9. 
 of such goods only as a neutral vessel may convey by the law of — - 
 nations, and of a trade ordinarily allowed to the neutral nation by the 
 government to whose subjects the goods belong. If the goods are 
 contraband according to the law of nations, such as naval stores, &c., 
 no freight is to be paid by the captor {d) ; and this, whether the 
 master know the quality of the goods or not ; for, in time of war, he 
 is bound to know the contents of his cargo, and cannot be permitted 
 to aver that he was ignorant of them (e) ; nor is any freight to he 
 paid by the captor if the ship is emploj^ed in bringing the produce of 
 the colony of a belligerent power to the mother-country (/), or in the 
 coasting trade between one port and another of the same country [g), 
 or in carrying the goods, even of neutrals, directly from the mother- 
 country to its colony (//), or from one hostile nation to the colony of 
 another hostile nation in alliance with it (i) , if these trades were not, 
 in time of peace, open to the neutral nation whose ship is so em- 
 ployed, — because, in all these cases, it is evident that the trade is 
 open in the time of war merely for the convenience of the belligerent 
 power, and to relieve that power from a part of the difficulties 
 occasioned by the war ; and the neutral vessel so employed thereby 
 furnishes direct assistance to the belligerent power. But as trade 
 from a port of one nation to a port of another is in general open to 
 all countries, freight is to be paid to the owners of a neutral ship 
 employ^ed in carrying the goods of an enemy from a port of one 
 nation hostile to the captors, to a port of another nation equally 
 hostile [k). 
 
 Again, if a ship be taken and retaken, and carried by the re- 
 captors into a port short of the place of destination, and the ship be 
 there restored, before the cargo is restored, either by reason of a 
 delay on the part of the merchant to claim the cargo, or of doubt or 
 litigation upon his right to restitution, the Court of Admiralty does 
 not require the ship to wait the doubtful event of the claim of the 
 cargo in order to convey it to the place of destination, but gives the 
 owners their whole freight, subject only to the deduction of salvage 
 upon the amount of it {I). And this with great justice; for the 
 capture is not imputable to the master ; the delay of obtaining resti- 
 tution of the cargo is imputable to the merchant. 
 
 If the ship of an enemy, carrying the goods of a neutral, be taken, 
 
 (c) The Copenhagen, 1 Roh. Ad. Rep. {g) Tlie Emanuel, 1 Rob. Ad. Rep. 29G, 
 
 289. The Bremen Flugge, 4 Rob. 91. The and the Mercitrltis there cited. 
 
 Vvoio Henrica, J Rob. 3-]-7. And the (7i) The /»«)««« »e/, 2 Rob. Ad. Rep. 186; 
 
 anionnt of freight is usnally measured by the Anne, id. vol. 3, p. 91, note (a) ; and 
 
 the terms of the charter-party : but see the the Xanci/, id. p. 82. 
 
 TiolWng Elget, 5 Rob. 85. (/) The Rose, 2 Rob. Ad. Rep. 200. 
 
 {d) The MercnHn.t, 1 Rob. Ad. Rep. {k) The Wilhelmina, 2 Rob. Ad. Rep. 
 
 288. 101, in notis. The lliram, 3 Rob. 180. 
 
 (p) The Ostev Tlisoer, 4 Hob. Ad. Rep. (/) The Eace Horse, 3 Rob. Ad. Rep. 
 
 199. 101 ; and see the cases cited in the note at 
 
 (/') The Mehecca, 2 Rob. Ad. Rep. 101 the end of that report. See i\\e Hoffnung, 
 
 See also tl:e Amerlafn, id. vol. :3, ]]. :}G. (I Hob. Ad. Rep. 231.
 
 400 PAYMENT OF FEETGHT. 
 
 Part IV. and the captor conduct the ship and cargo to the place of destination, 
 
 and so fulfil the contract of the master, the captor is entitled to 
 
 receive the freight of the goods iipon their restitution to the mer- 
 chant ; hut he is not entitled to this if he take the ship to a different 
 port, and do not perform the original voyage (a) — not even if the 
 proprietor of the cargo afterwards disposed of it at the place to which 
 the ship may be carried {b). 
 
 The receipt of freight by the obligee of a bottomry bond is in law 
 a receipt of it by the shipowner, by whose master the bond Avas given 
 to raise money for necessaiy repairs (f). 
 
 (a) The Forliiua, i Eob. Ail. Rep. 278; (i) Vroio Anna Cathenna, G Eob. Ad. 
 
 the Vrei/heid ; Bynkershoek, Quest. Jur. Rep. 269. The Dia>ia, 5 Roh. 71. The 
 
 Pub. lib. 1, e. 13, there cited. This is dif- Etrusco, 5 Rob. 69. But see the Race 
 
 ferent from the old rule, as laid down in Horse, 3 Rob. 101 ; the Hamilton, ib. 107. 
 
 the Cousolato del Mare, ch. 173. (c) Benson v. Chapman, 8 C. B. 950.
 
 .STOITAOE TX TIIAXRITr. 401 
 
 Chap. 10. 
 
 CHAPTER X. 
 
 OF STOPPAOE I\ TRAXSITU; AND HEREIN'. 
 
 Skct. 1. IVknt it is, p. 401. 
 
 2. In tohat cases, generaUi/, Goods may he Stopjied in Transitu, p. -40-1. 
 .3. Under what circHmstances Goods are deemed to ie in Transitu, p. 400. 
 
 4. How the Might of Stoppnqe in Transitu is to be Exercised, p. 415. 
 
 5. By tchat acts the Sight of the Vendor mag he taken a wag, p. 416. 
 C. Of the Factors Acts, p. 420. 
 
 1. iriiat Hloppaye i/i Transifu is. 
 
 [Whkn goods have been shipped upon credit, and the consignee 
 lias become a bankrupt, or failed id), the law, in order to prevent the 
 loss that wonld happen to the eonsignor by the delivery of them, 
 allows him, in many cases, to countermand the delivery, and, before 
 or at their arrival at the place of destination,, to cause them to be 
 delivered to himself, or to some other person for his use. This is 
 usually called Stoppage in Tranailu. 
 
 This practice was first sanctioned and established in the Court of 
 Chancery, by dismissing claims of the assignees of a bankrupt against 
 a foreign merchant or his agent (e), and in one case by a decree in 
 favour of a foreign merchant, plaintiff in that court, the master having 
 refused to deliver the goods either to him or to a trustee for the 
 creditors of the consignee (/). Such a court, however, will not, by 
 injunction, prevent the sailing of a ship in order to enable a con- 
 signor to resume his goods, Avhich might be highly inconvenient to 
 other shippers and persons, but leave him to his remedy at law, if 
 the goods be improperly converted {(j) ; for this right of stopping in 
 Iransitu has been frequently recognised and carried into effect by] 
 
 {d) See as to the meauiug of " failure " — Dixon v. Yates, 5 B. & Ad. 313. Gihson 
 
 ami "insolvency,'' as appUeable to the \. C(irruthers,S yi.. k,Vi^.Z21. M'Hwan v. 
 
 vig-ht of Stoppage iu Transitu, Biddlecombe Smith, 2 H. & L. 309. 
 
 V. Bond, 4 A. &: E. 332; I'ertue \. Jewell, (e) [In the case of JViseman v. Tandepuf, 
 
 1 Caniph. 31 ; Newsom v. Thornton, 6 East, 2 Vern. 203. Vnee v. Prescott, 1 Atk. 245. J 
 
 17 ; Dixod V. Yates, 5 B. & Ad. 315. Mr. See Gibson v. Carruthers, 8 M. & W. 321. 
 
 Smith, in his Compendium of Mercantile per Abixgeb, C. B. 
 
 Law, p. 550, adverting to these cases, ex- (/) \^D'dguilav. Lambert, Amh.3i)9. It 
 
 presses an opinion that the tenn in.solvency does not appear by the report of t'.iis case 
 
 (when used with reference t > this branch of who the defendant was.] 
 
 the law) is satisfied by general inability (g) Goodhart v. Lowe,2Jnc.&.\V.3\i).^ 
 
 evilenced bv stojipase of pavnient. See Si-e Schotsman v. Lancashire, ^v., Railioaj 
 
 Bihon v. Crofts, L. K. 15 Eip 314. The Co., 36 L. -I. Cii. 361. 
 vendor luav also of course refuse to deliver. 
 
 ^ 3 p
 
 402 
 
 STOrPAGK [N TRANSITU. 
 
 Part IV. [the Courts of Law. It is founded on principles of natural justice 
 and equity. But the law of England is in this respect more favour- 
 able to the transfer of property^ the great subject of commerce, and 
 less attentive to the interest of the seller of gocds^ than the ancient 
 Civil Lav, or the modern law of many European nations, which is 
 chiefly founded on the Civil Law (a) . For the Civil Law did not in 
 general consider the transfer of property to be complete by sale and 
 delivery alone, without payment or security for the price, unless the 
 seller agreed to give a general credit to the buyer for it^ but allowed 
 the seller to reclaim the goods out of the possession of the buyer, as 
 being still the seller's own property {h). And by the general law 
 of France, in the case of insolvency, '' The seller, who has sold a 
 thing, and still lies out of the money which he was to have for it, if 
 he finds the thing that he sold in the hands of the buyer, may seize 
 on it, and he is not obliged to share it with the other creditors of the 
 buyer. And it would be the same thing — nay, and with much more 
 reason — if the owner of the thing had given'' (delivered) "it to the 
 debtor to sell for him" (c) . "Whereas, by the general law of England, 
 when (joods have been delivered into the actual or constructive pos- 
 session of the buyer, they cannot be reclaimed {d), although, if found 
 remaining unsold in the hands of an insolvent factor, they may be 
 reclaimed, because a delivery to a factor does not of itself alter the 
 property. 
 
 The law of England, however, will lend its aid to carry into eftect 
 the more enlarged rule of equity, which exists in another country, 
 upon a transaction taking place there_, as appears by the following 
 case : By the law of llassia^ " If^ in ease of unpaid debts or bank- 
 ruptcieSj anybody has reason to suspect that the debtor or bankrupt 
 has any thoughts of making the creditor lose, and therefore loadcth 
 on board of ship or vessel goods or cargo ; in such a case the creditor 
 is to give notice in town [e] to the head Judge of the Court (in] 
 
 {a) [Emerigon, speaking of the assignment 
 of a bill of lading, says, '• Mais ces sortcx de 
 cessionn deferent av. cession nai re toi s'rn)j)le 
 droit ad rem, qui h.d doiiiie ponroir de 
 requerir la delivrance des effeta indiqurx, 
 sans le metire en possession effectire de hi 
 chose meme. Ainsi, que Jiisqii.'a cc que la 
 tradition reelle ait etc fait dans ini temps 
 ■utile au 2^orteur dti connoissernent, il n'a 
 qu'nne action personnelle, qui est suhor- 
 donnce aux droits du tiers. Je crois done 
 qu'nne pareille cession ne sauriut nuire, ni 
 au pririlecie du vendeur primitif, non pai/r 
 du prix, ni au privilege du donneur a la 
 grosse, ni au.r droits de la masse des crcan- 
 ciers. Telles sont nos regies. Les connoisse- 
 rnent n'a jamais etc considi'rc par mi nous 
 comme v.n papier negociahle. Le transport 
 du litre est ime tradition feinte, qui 
 s'evanouit par la faillite ou I'insolrabilitc 
 notoire du ccdant.'' — Enicrigon, toil:. 1, 
 p. 319, quoted by Dr. Robinson in a note to 
 tlie Constantia, H Rob. Ad. Rep. 325.] 
 
 (Zi) [Quod rendidi, nan aliter Jit acci- 
 pientis, quam si aut j)retium nolis solutiini 
 sit, aut satis eo nomine datum, vel eliam 
 fidem liauhuerimus emptori sine ulla satis- 
 factione. — Dig. 18, 1, 19. Sec also id. cod. 
 "tit. .53, and Dig. 19, 1, 13, 8, il" 14, 4, 5, 18.J 
 
 (fj [Doniat's Civil Law, book 4, tit. 5, 
 see. 2, art. 3. Sec also tlie notes of the same 
 anthor on that article, and on book 3, tit. 1, 
 see. 5, art. 3. Where it apjiears that by 
 the custom of some parts of France, a per- 
 son who has sold goods, expecting to be paid 
 immediately, may, if he is not paid, retake 
 the goods even out of the possession of a 
 subsequent purchaser.] 
 
 {d) [luca.se of a sale of land, if the pur- 
 chase money is not paid, the Court of Chan- 
 cery considers the purchaser as a trustee for 
 the' seller.— Po//f.t7e/i v. Moore, 3 Atk. 272 ; 
 and see Blacklurn v. Gregson, 1 Brown's 
 Rep. in Chancery, 420.] 
 
 (f) iQ,tia>re, whether this should not be 
 " towns" oi- "a town r "]
 
 1, WHAT IT IS, 403 
 
 [districts to tlie Chief), that the ship or vessel, or goods, or the whole Chap. 10. 
 
 cargo, should be retained time enough until the full payment is made ' 
 
 to whom due." " In consequence whereof, and by virtue of that 
 law, if the seller or shipper, in case of bankruptcies, can identify 
 that the merchandise belonging to him is in Russia, in ships, ware- 
 houses, or wherever they may be, in such a case the goods must be 
 given back to the sellers or shippers, beinj/ their pi'ojierty, and cannot 
 be brought in concurs'^ (/); that is, into the general mass of the 
 buyer's effects to be distributed among his creditors, Messrs. 
 Bohtlingk and Co., of St. Petersburgh, in pursuance of directions 
 from one Crane, of London, and as factors for him, shipped a cargo 
 of Russian commodities at St. Petersburgh, on board a ship chartered 
 by Crane, and sent invoices thereof, and a bill of lading of part to 
 him ; but learning before the ship's departure that some bills, drawn 
 by them on him in consequence of a previous transaction, Avere 
 unjmid, tJiey procured from the master of the vessel bills of lading to 
 their own order, and sent them to a friend in London, and informed 
 Crane that he might have the bills of lading upon giving security to 
 their fi-iend for payment of the bills of exchange to be drawn for the 
 amount of the goods ; otherwise their friend would sell the goods on 
 Crane's account, and apply the proceeds in discharge of the bills of 
 exchange. Crane, in fact, had committed an act of bankruptcy 
 before any of the goods were shipped. On the arrival of the ship in 
 London, his assignees demanded the goods of tlie master, and offered 
 to pay the freight, &c. : but the master delivered them to the friend of 
 Bohtlingk and Co. on their account, in conformity to their endorse- 
 ment of the bills of lading. Whereupon the assignees of Crane 
 brought an action against the master : and the court held, that the 
 law of Russia in this case ought to prevail, although Bohtlingk and 
 Co. had not actually taken the goods out of the ship, or instituted 
 legal process for the recovery of them ; considering the master's 
 signature of bills of lading to their order to he equivalent to a 
 stopping in transitu, or re-delivery to them, and to have rendered it 
 unnecessary for them to have recourse to the compulsory process of 
 the law (fj) . 
 
 In this case recourse was had to the law of Russia to sustain the 
 right of the consignor, because the ship was understood to have been 
 chartered by the consignee, and it w^as then supposed that the right 
 of stopping i)i, transitu did not apply to the case of goods shipped on 
 board a vessel of that description. In another case, how^ever, that 
 arose out of the saine transaction, wherein it appeai'cd that the con- 
 tract "was not made in terms of letting and hiring, but contained only 
 that the ship should proceed to Petersburgh, and there load from the 
 factors of Crane a complete cargo, it was held that the shippers might 
 stop the goods by the law of England, without the aid of the Russian 
 law {h).] 
 
 if) [Mercantile Navigation Laws of (9) Inr/lis v. Uxkerivood, 1 East, 515. 
 
 Russia, published 25tli .June, 1781, see. (//) Bohtlhigl v. Incjiis, .3 East, 381, 
 
 138.J jm^f, p. 410.
 
 404 sT(ipr\r;r: i\ tlvwrttu. 
 
 PartJV. 
 
 2. In irhcii cases yener ally goods may be stopped in Transitu. 
 
 [It should be observed^ that the act of stopping in transitu is an 
 adverse act on the part of tlie consignor against the consignee. If a 
 consignee^ after an act of bankruptcy^ deliver up the bills of lading to 
 another person^ upon his undertaking to apply the proceeds of the 
 goods in discharge of bills of exchange drawn for the price^ and he 
 accordingly receive the goods, he cannot retain them against the 
 assignees of the bankrupt, although the original consignor afterwards 
 approve of the arrangement ; and it seems that the law would be the 
 same, even if the person with Avhom such an arrangement should be 
 made Avere at the time an agent of the consignor [a). But if the 
 delivery of the goods be countermanded by the consignor, the goods 
 having been consigned upon credit, and t/ie consignee having failed or 
 become bankrupt, it is the duty of the master to obey the countermand, 
 and deliver the goods, not to the consignee, but to the order of tlie 
 consignor. Such countermand and sidDstitution of a new consignee 
 are most easily effected, if the bill of lading is originally made for 
 delivery to the order of the consignor, because in that case the con- 
 signor may, if he has reason to suspect the failure, or is afterwards 
 apprised of it, send another part of a bill of lading to a correspondent 
 at the port of destination, endorsed in blank, or for delivery to him. 
 But the countermand may also be made, in the event before mentioned, 
 if the consignee is originally named in the body of the bill of lading {b) ; 
 for the right of stopping in transitu does not depend upon a sup- 
 position that the property has not passed from the consignor ; but, on 
 the contrary, is founded on an admission that the property has become 
 vested in some other person. Xo question can c^er be made upon 
 the right of a man to seize his own goods; but the question in cases 
 of stoppage in transitu genernWy is, whether, under the circumstances, 
 the consignor may devest the property which has passed to another, 
 and revest it again in himself (c).] 
 
 In the case of Hodgson v. Loy (d), it was decided that stoppage 
 in transitu did not devest the property of the vendee, and therefore 
 that a consignor might exercise that right, although part of the price 
 of the goods shipped had been paid by the consignee. Lord Kexvox 
 in that case said, it Avas an equitable lien adopted for the purpose of 
 substantial justice. The common-law right of lien enables the vendor 
 to detain goods before he has relinquished possession of them ; and 
 this right of stoppage enables him to resume them before the vendee 
 has acquired possession, and to retain them until the price be paid or 
 tendered (e). "The vendor's right,'' says Mr. Justice Bavlev, 
 delivering the judgment of the Court of King's Bench, " is not a mere 
 
 (a) Siffken v. Wray, 6 East, 371. See (c) See Buller, J's., opinion in Lick- 
 
 Bartram v. Farehrother, 4 King. 579. harrow v. Mason, 6 East, 27, 28. 
 
 (6) The Astdfinees of Buriihally, Howard. (d) 7 Tcnii Re]). 415. 
 
 1 Uen. Bl:i. 36.5. ncitc (a). \e) Kent's Com. and >rantiine Law. 
 
 Kdinb. Kdit.. j). 470.
 
 2. L\ WJTAT TANKS LiENEUALI.Y. 405 
 
 lien which ho will t'ort'cit if he parts with the possession^ bnt gi'ows Chap. 10. 
 out of his original ownership and dominion. If goods are sold on 
 credit, and nothing* is agreed on as to the time of delivering them, the 
 vendee is immediately entitled to the possession^ and the right of pos- 
 session and the right of property vest at once in him. But his right 
 of possession is not absolute ; it is liable to be defeated, if he becomes 
 insolvent before he obtains possession. If the seller has despatched 
 the goods to the buyer, and insolvency occurs, he has a right, in virtue 
 of his original ownership, to stop them in tratisitu. Why ? Because 
 the property is vested in the buyer, so as to subject him to the risk 
 of any accident ; but he has not an indefeasible right to the posses- 
 sion. His insolvency, without payment of the price, defeats that 
 right. The Iniyer, or those who stand in his place, may still obtain 
 the right of possession if they will pay or tender the price, or they 
 may still act on their right of property if anything unwarrantable is 
 done to that right. If, for instance, the original vendor .sell when he 
 ought not, they may bring a special action against him for tlic damage 
 tliev sustain by such wrongful sale, and recover damages to the extent 
 of that injury''' (/). 
 
 From this it appears that the exercise of this right does not proceed 
 upon the ground of rescinding the contract, but assumes its existence 
 and continuance : and as a consequence of that principle, it has been 
 held, that after stopping the goods in transitu, the vendor may sue for 
 and recover the price of them, provided he bs ready to deliver them 
 on payment {g). Yet from some cases, the question Avhether the 
 effect of stoppage in transitu be to rescind the contract, or merely to 
 revest the lien of the vendor, seems to be unsettled (A). It has 
 been held, that the vendor may re-sell the goods, if they be not duly 
 paid for by the purchaser (i) . 
 
 [A person abroad, who, in pursuance of orders sent by a merchant 
 of this country, purchases goods on his own credit of others, whose 
 names are unknown to the merchant, and who charges the merchant 
 a commission on the price, and consigns them to him, is, as respects 
 the exercise of this right, a consignor : in reality, he is the vendor, and 
 the consignee the vendee [k) . So, also, is a person who sends goods to 
 be sold on the joint account of himself and the consignee [1). Even 
 an alien enemy, who had shipped a cargo to a British merchant under 
 a British license, has been allowed to stop the goods by his agent on 
 their arrival in England ; the license being held to give legality to all 
 the consequences of the sale (»«). But a person who becomes surety] 
 
 (/) Bloxam v. Sanders, 4 13. & C. 948. from Mr. Baron Parke iu that case, and 
 
 See Or/g v. Shuter, 45 L. J. C. P. 44; L. 11. also in James v. Griffin, 2 M. & W. 623. 
 
 1 C. P. D. 147. See Martindalew. Smith, 1 Q. B. 389. 
 
 {(f) Ktimer v. Suwercrop, 1 Cauipb. 109. (/) Laj/ford y. Tyler, Salk. 113. See 
 
 (h) See the observations of Lord TenteR' Ogij v. Shuler, supra. 
 
 DEX in Clan V. Harrison, 10 B. & C. 99; (/!) \_Fiese v. Wraif, 3 East, 93.1 The 
 
 and of Pahke, B., in Wentioorlh v. Outh- Tigress, 32 L. J. Ad. 97. Ireland v. Living- 
 
 waif/ie, 10 M. c<;: W. 436 ; Sfejdiens v. Wil- slone, L. B. 5 U. L. 393. 
 
 fi'inson, 2 B. & Adol. 223 ; Edwards v. (I) yetcsom v. Thurnton, 6 East, 17. 
 
 Brewer, 2 Jl. «L \V. 375; and sec what fell {m) I'citlon v. Vcarsvn, 15 East, 419.
 
 406 sTurrAUE IX teaxsIt^. 
 
 Part IV, [for the consignee^ by accepting bills clra"\vn for the price of goods by 
 the A'endor, is not a consignor within this rulc^ altliough the bills be 
 sent throngh his hands to the consignee {a) . 
 
 If the consignor endorse and transmit the bill of lading, in pursuance 
 of an agreement;, and in trust to indemnify against acceptances^ or the 
 like, he cannot countermand the delivery, and take back the goods, 
 ■while the trust and object of the consignment remain nnsatis- 
 fied; nor must the master re- deliver thera to him [b). So, if goods 
 be sent by order of the consignee, on his aceonnt and at his risk^ and 
 the consignor draw bills of exchange npon him for the price, and 
 endorse and transmit the bill of lading, the consignor cannot take 
 possession of the goods at the place of destination, and insist upon 
 immediate payment as the condition of delivering them, the consignee 
 being Avilling to accept the bills, and not havinf/ failed in his circum- 
 stances {c) . 
 
 This subject has received much illustration from a judgment 
 delivered by the learned Judge of the Court of Admiralty, Avhosc 
 opinion coincides entirely with what has been here advanced. A ship 
 having been taken on a voyage from Cette to Copenhagen, some 
 • brandy found on board was claimed in the Court of Prize, on behalf 
 of a Mr. Kyc, of the latter place. The consignor, I apprehend, was 
 an enemy, and Kye a neutral. The question was, whether the 
 brandy was the property of Kyc ? The documents were not all before 
 the court in the first instance ; but the material facts appear to have 
 stood thus : — The consignor at Cette had received orders from Kye 
 to send him a quantity of brandy, for which he was to draw on a 
 Mr. Rcinke ; and the letter of orders expressed a wish that the brandy 
 should not be shipped before April. The brandy was, in fact, shipped 
 in January or February, and bills drawn on Reinke about that time. 
 By the bill of lading, the brandy was expressed to be shipped on the 
 account and risk of Kye, and to be delivered to him. J3efore the 
 ship^s departiire, the consignor appears to have received some infor- 
 mation, from which he inferred that Kye had stopped payment ; and 
 he took the master of the ship before a magistrate, and there caused 
 the following endorsement to be made on the bill of lading : " That 
 whereas the master cannot deny that he has received one hundred 
 hogsheads of brandy for Mr. Hans Kye; but as the interest of the 
 shipper demands that they should not be delivered to Mr. H. Kye, the 
 master is prohibited from delivering them to him ; but he is directed 
 to deliver them to Mr. llyberg." A letter was probably written about 
 the same time to Eybcrg, desiring him to take possession of the 
 brandy ; a letter was afterwards written to the same person, revoking 
 such order, and saying that Kye had ordered the drafts to be accepted^ 
 and that the intelligence on Avhich the consignor had acted Avas 
 erroneous, for not Kye, but a ]Mr. Kuhl, had stopped payment. In 
 fact, Reinke did not at first accept the drafts for want of orders from] 
 
 (a) SiffJceii V. Wi-aif, 6 East, 317. (r) Wallcj/ v. Monfgomeni^ 3 East, 58 J. 
 
 (b) Bailie v. iimith, 1 Bos. & Pull. 503. 
 See other cases, o.nle, p. 271.
 
 2. IN WHAT OA!<ES GEN KK ALLY. 40? 
 
 [Kye^ wliich seems to have bceu owing to the shipmeut liaviiig bocu Chap. 10. 
 
 made earlier than Kye expected. The following observations, which 
 
 form a part of the very learned judgment delivered on this occasion, 
 are extremely opposite to the subject of the present chapter: "The 
 revocation in this transaction was not explained, but w'as expressed 
 in absolute terms ; and I am clearly of opinion that if Mr. Kye had 
 been an insolvent person, it would have amounted to a complete and 
 effective revendication of the goods. But if the person to Avhom they 
 are consigned is not insolvent; if, from misinformation, or from 
 excess of caution_, the vendor has exercised his privilege prematurely, 
 he has assumed a right that did not belong to him, and the consignee 
 will be entitled to the delivery of the goods, with an indemnification 
 for the expenses that may have been incurred. In the law of England, 
 as far as I can recollect it, and in all books into which I have 
 looked, it is not an iiiilimited power that is vested in the consignor, 
 to vary the consignment at his pleasure in all cases Avliatcver. It is 
 a privilege allowed to the seller, for the particular purpose of protce- 
 ing him against the insolvency of the consignee. Certainly it is not 
 necessary that the person should be actually insolvent at the time. 
 If the insolvency happens before the arrival, it would be sufheieut, I 
 conceive, to justify what has been done^ and to entitle the shipper to 
 the benefit of his own provisional caution. But if the person is not 
 insolvent, the ground is not laid on which alone such a privilege is 
 founded. Then, if Mr. Kye has proved insolvent, tlie shipper will 
 have exercised his privilege; but if he is not insolvent, and has 
 actually provided for the payment of the goods^ he w ill be entitled to 
 the deliver}', unless it can be shown that the right of the shipper 
 extends further than I have stated it, and that it amounts to an 
 unlimited right to vary the consignment at pleasure. Where goods 
 are shipped without orders, such a right exists. The seller^ if he may 
 be so described, retains an absolute power over them, for there is no 
 purchase. But wdien orders have been received and executed, and 
 delivery has been made to the master of the ship, and bills of lading 
 signed, the seller is functus officio, except in the peculiar case in 
 wliich he is again reinstated by the privileges of the vendeur primitif. 
 That will make it a matter of fundamental importance, that the 
 letters containing the original order should be ])roduced. The mer- 
 cantile law I take to l)e clear and distinct, that the seller has not u 
 right to vary the consignment, except in the case above stated. Tiic 
 mischief and inconvenience that would ensue on a contrary suppo- 
 sition are extreme. The goods might be put on board, and might 
 lie at the risk of the consignee for two or three months ; and if the 
 consignor could come and resume them at pleasure, it would place 
 the consignee in a situation of great disadvantage, that he should be 
 exposed to the I'isk during such a length of time, for an object which 
 might be eventually defeated at any moment, by the capricious or 
 interested change of intention in the breast of the consignor. It 
 would be to expose the consignee altogether to the mercy of the 
 seller." 
 
 The learned judge then proceeds to quote three cases from Emej'i-]
 
 408 STtiPrAGE IN TRAXSlTf. 
 
 Part IV. [gou {(i), in each of which a Frencli court had ordered goods to be 
 delivered to the original consignee, notwithstanding a change of des- 
 tination by the consignor ; and then adds^ " These cases I consider to 
 be a clear exposition of the law, that persons having accepted 
 orders, and made the consignment, have not a right to vary that con- 
 signment, except in t/te sole case of insolvency. The alteration may 
 be made provisionally, without actual insolvency ; but if the insol- 
 vency does not take place, the act Avhich has been done is a mere 
 nullity; and the seller has exercised a power to which the law docs 
 not ascribe any legal eft'ect.^' In the result, the goods were restored 
 to Kye {b) . 
 
 This right of stopping goods in transitu does not belong to a person 
 who had only a lien upon tliem without a property in them. And 
 therefore if a fuller or dyer, who has fulled or dyed cloths, and who 
 is not obliged to ])art with the possession of theni until the price of 
 fulling or dyeing them is paid, put them on board a ship for delivery 
 to his employer in pursuance of his orders, and the employer fail, the 
 fuller or dyer cannot countermand the delivery, because his lien and 
 right to retain the cloths ceased as soon as he parted with the posses- 
 sion of them (c) . 
 
 A consignor may exercise this right, although a part of the price 
 of the goods has been paid by the consignee {d) ; or a bill of ex- 
 change has been accepted by him for the whole, and endorsed over to 
 a third person (e). And an usage for land- carriers to retain goods as 
 a security for the general balance of account due from the consignee, 
 Avill not prevent the consignor from re-claiming them out of their 
 hands, upon paying the price of the carriage of the particular goods 
 only (/) . Nor will a similar usage, when the carriage is to be paid 
 by the consignor, authorize the carrier to detain goods from the con- 
 signee who has paid the price of them [g) .] And the vendor's right 
 cannot be defeated by a claim against the vendee, as by process of 
 attachment at the suit of a creditor {h) , or on account of a general 
 lien by the agent of the consignee (/) .] 
 
 (a) [The learned judge reiuarked, that tioncd, the right of stoppage in respect of 
 
 he thought the law of France very im- such goods is gone. Merchant Bankinj 
 
 portant to the case before him, being a Co. of London \. Phcenix, Sfc, Co., 46 L.J. 
 
 French consignment.] Ch. 418 ; L. R. 5 Ch. D. 205. 
 
 {b) The Constcnilia, 6 Rob. Ad. Rep. (e) [Fiese v. JT'raj/,d E-dst, 93.'] Edioards 
 
 321. V. Brewer, 2 M. & W. 375. 
 
 (c) \^Swef( V. Pi/m, 1 East, 4.] yicholls {J") 0]}])enheii)i v. Russell, 3 Bos. & Pull. 
 V. Lefenvre, 2 B. N. C. 83. Leuckhart v. 42. 
 
 Cooper, 3 B. X. C. 99. ilorleij v. Katf, (g) Butler v. Woolcot, 2 Bos. & Pull. 
 
 3 il. & R. 396. N. R. 64. 
 
 (d) \_IIodgson v. Lot/, 7 Term Rep. iu (A) Smith v. Goss_ 1 Campb. 282. 
 
 K. B. 440.] But after a payment for [i) NichoUs v. Lefeuvre, 2 B. N. C. 83. 
 
 specific goods where contract can be appor-
 
 O. WJIEX ClOubS iiKEMED IN TlJANSlTU. 409 
 
 Chap. 10. 
 
 3. Under tvhat circuinstances Goods are deemed to be in Transitu. 
 
 [Goods are deemed to he in transitu not only wliile tliey remain in 
 the possession of the carrier, whether by water {k) or land [l), and 
 although snch carrier may have been named and appointed by the 
 consignee ; but also when they are in any place of deposit connected 
 with the transmission and delivery of them, and until they arrive at 
 the actual or constructive possession of the consignee,] at the place 
 named by the buyer to the seller at their destination [m) . If the 
 consignee, before the goods reach their ultimate destination, does any 
 act which is equivalent to taking actual possession of them, the tran- 
 situs is at an end {n). Acts which in themselves Avould be equivocal, 
 will be judged of from the circumstances attending them, and explain- 
 ing the purpose with Avliich they were done (o). A case of construc- 
 tive possession by the vendee, of goods remaining in the hands of the 
 carrier, is where the carrier enters expressly, or by implication, into 
 a new agreement, distinct from the original contract for carriage, to 
 hold the goods for the consignee or his agent, not for the purpose of 
 expediting them to the place of the original destination pursuant to 
 that contract, but in a new character for the purpose of custody on 
 his account, and subject to some new or further order to be given by 
 him (p). Where goods are placed in the possession of a carrier to be 
 carried and delivered, the transit us is not at an end, so long as the 
 carrier continues to hold the goods as carrier, and is not at an end 
 until the carrier, by agreement between himself and the consignee, 
 agrees to hold the goods for the consignee, not as carrier but as his 
 agent ; and fhe same principal will apply to a warehouseman or 
 wharfinger [q). 
 
 [If goods are sent by sea to a certain port, to be forwarded from 
 thence by land to the residence of the consignee, and upon the ship^s 
 arrival at the port are delivered to a wharfinger, who receives them 
 on the part of the consignee to be forAvarded to him accordingly, they 
 are subject to this right of the consignor in the hands of the 
 wharfinger {r). And the law is the same in case of delivery to a 
 packer appointed by the buyer (.§), unless the warehouse of the] 
 
 {k) [Slokes V. JLa Riviere, tried before {n) Foster v. Frampion, 6 B. & C. 107. 
 
 Lord Mansfield at Guildhall, cited 3 Term Allen y. Gripjjer, 2 Tyrw. 217. James v. 
 
 lieji. 466.] Griffin, 2 M. & W. 623. Tucler v. Kum- 
 
 (I) [^Hunter v. Beale, tried before Lord phrei/, 4 Biug, 516. 
 
 Mansfield at Guildhall, 3 Term Rep. (o) Jones v. Jones, 8 M. & W. 431. 
 
 466.] {p) Whitehead v. Anderson, 9 M. & \X. 
 
 (m) Rome v. Fickford, 8 Tauut. 83. Leeds 534. Wentioorth v. Outwaithe, 10 M. & W. 
 
 V. Wright, 2 Bos. & Pull. 320. Dixon v. 436. Dohson v. Wentworth, 6 Jur. 1066. 
 
 Baldwin, 5 East, 175. Coates v. Railton, (q) Re Mc Laren, 48 L. J. B. 49. 
 
 6 B. & C. 422. Jackson v. Xicholl, 7 Corentri/\. Gladstone, 37 L. J. C'h. 492 j 
 
 Scott, 585. Meletopulo v. Ranking, 6.Tur. L. U. 6 Eq. 44. 
 
 1095. ILenekeii v. Fade, 8 E. & B. 410, (r) Mills v. Ball, 2 Bos. & I'ull. 457. 
 
 21 L. J., Q. i}. 79. Fx parte Cole, 43 (s) Runt v. Ward, 3 Term Ecp. 467. 
 L. J. B. 19.
 
 4io 
 
 8turrA(.;i:] ix tkax^itu. 
 
 Part IV. [packer bo used by the buyer as liis own^ and be the place of the ulti- 
 mate destinatiou of the goods («).] 
 
 In such cases the question is, whether the Avarehouseman or 
 ■wharfinger be the agent of the vendee to receive the goods, or his 
 agent to forward them {b). And the irunsUns is not determined 
 unless possession be taken by the consignee as OAvner; he may receive 
 the goods into the warehouse of his agent, for a limited purpose, as 
 for the benefit of the consignor, to restore them to liim, and the 
 intention with which he receives them is a question of fact (c). Thus, 
 where it appeared that the goods were landed at the warehouse of 
 a wharfinger, which the consignee used as his own for the purpose of 
 stowing snch goods, and that, though hmded with his permission, he 
 did not intend to take possession of them as owner, it was licld by 
 the Court of Exchequer that the transitus Avas not determined. A 
 majority of the learned judges Avere of opiniou, that evidence of such 
 intention was admissible, tliough it had not been commnnicated to 
 the Avharfinger ; but on this point Lord Abixger dissented, thinking 
 a declaration to the Avharfinger or the vendee, of the intention Avitli 
 Avhich the consignee received the goods, necessary to prevent the ter- 
 mination of the transit [d). 
 
 The master of a ship chartered wholly by the consignee may be a 
 carrier, in Avhose hands goods may be stopped [e] . ' [But Avhere a ship 
 liad been hired by the consignee for a term of years, and Avas fitted 
 out, victualled, and manned by him, and goods Avere put on board 
 thereof to be sent by Mm on a mercantile adventure, for which he had 
 bought them ; it was held that the consignor conld not stop them — 
 the consignee being in that case the OAvner of the ship/zro tempore, 
 and the delivery of the goods on board thereof being equivalent to a 
 delivery into a Avarehouse belonging to him, and the transit being in 
 effect a transit from and not to him (/). 
 
 In a case of goods sent by a waggon, Avhicli arriA'ed at the inn in 
 London Avhere the Avaggon iisually put np, and were there attached 
 by a creditor of the vendee, according to the custom of London, and 
 which in that situation Avcre claimed bv his assignee, he having] 
 
 (a) {^Scott V. Fettit, 3 Bos. & Pull. 469.] Court of Exchequer, delivered by tlie latter 
 
 Tucker v. Himplireii, -4 Bing-. 516. Richard- learned judge, in the case of Jones v. Jones, 
 
 soil V. Goss, ib. 119. But a delivery order 8 M. & W. 431. 
 
 given to the vendee, or the fact of his being {d) James, v. Griffin, 2 M. ct W. 623. 
 
 charged with rent by the vendor to whose (e) lBoifiIinf/7i v. Inglis, 3 East, 381 ;] 
 
 warehouse and under whose control the Berndston v. Kilranff, 36 L. J. Cli. 879; 37 
 
 goods remain, will not determine the transit, L. .1. Ch. 665 ; L. J. 4 Eq. 481 ; 3 Ch. 58S ; 
 
 Miles V. Gorton, 2 Cr. & M. 501. Townlei) Modgcr v. Coniptoir B'Escomte de Paris, 
 
 v. Crump, 4 A. & E. 58. Grice v. Richard- L. R. 2 P. C. 393; Re Cock, 48 L. J. B. 
 
 son, 47 L. J. Priv. C. 48; L. K. 3 App. Ca. 100. 
 
 319. (/) [Foiolerx. M'Taggart, tried before Mr. 
 
 {b) Per Parke, B., in James v. Griffin, Justice Grose at Bristol, and cited 7 Term 
 
 1 Mees. & W. 20. The warehouseman or Bep. 412, and in the case mentioned in the 
 
 wharfinger cannot become the agent of the text.] And see Schotsmans v. Lancashire, 
 
 vendee without his assent. Kx, parte Bar- ijv., R'l. Co., 36 L. .J. Ch. 361 ; L. B. 2 Cli. 
 
 row, re Iforsdell, 4.6 L. J. B. 71; L. K. 332, where the vendee was the owner of 
 
 6 Cb. D. 783. tbe ship, and the bills of lading were made 
 
 (f) See the judgments of Lord Abixgek out for delivery to him or bis assigns, and 
 
 and Park E, B.; and the judgment of the there was no restriction on the dehvery,
 
 3. WHEN tioODS DEK.MED I^^ TKA^■SITU. 411 
 
 [become baukruiit^ and marked by the assignee, it was held that the Chap. 10. 
 
 vendor could not afterwards countermand the delivery — the goods ■ 
 
 being deemed to have arrived at the end of their destined journey, 
 and the assignee to have done that Avhich was equivalent to taking 
 actual possesion ; the removal of the goods being impracticable on 
 account of the attachment {y) . The question arose between the 
 vendor and the assignee, who after a claim made by the vendor 
 obtained possession of the goods, attachment being taken off. An 
 attachment of this sort laid upon goods in the hands of a wharfinger 
 does not defeat the right of the consignor {It). 
 
 A delivery of goods to an agent of the buyer residing at a seaport, 
 with whom they are to remain until the buyer sends orders for ship- 
 ping them to a foreign country, is in effect a delivery to the buyer (/). 
 So if a buyer, having no Avarehonse of his own, be in the habit of 
 leaving goods at the waggon office, until he gives orders for their 
 shipment or removal, the transit ends upon their arrival at the w"aggon 
 office [k) . In each of these cases, as between the buyer and the seller, 
 the goods have arrived at the end of their journey. The subsequent 
 shipment would be the commencement of a new^ journey under the 
 direction of the buyer.] 
 
 In Whitehead v. Anderson (/) Parke, B., said : " If the vendee 
 take the goods out of the possession of the carrier into his own before 
 their arrival, with or without the consent of the carrier, there seems 
 no doubt that the trunsitus is at an end." 
 
 [By an Act of Parliament made for securing the duties payable 
 upon the importation of Avine, the proprietor, importer, or consignee 
 was required Avithin twenty days after the ship had been entered at 
 the Custom-house, to make an entry of the wine, pay the duties, and 
 land the Avine; upon failure, the Avine Avas to be conveyed to the 
 King's Avarehouse, and if the duties were not paid Avithiu three 
 months, to be publicly sold, to defray the duties and ex])cnses, and 
 the overplus (if any) to be paid to the proprietor, or other person 
 authorized to receive the same [m). This statute gaA^e occasion to a 
 question upon the subject now under consideration. A quantity of 
 Avine arrived here, consigned to Leyland and Cragg by Avhoni it Avas 
 ordered, and Avho had accepted a bill draAvn upon them for the] 
 
 ;tnd it was held that there was a complete (7t) Smith v. Ooss, 1 Campb. 282. 
 
 delivery to the vendee when tlie same were (i) \_DLvoiix. BahUoin, 5 East, 175. Sec 
 
 delivered on board ship. See Turner v. also Leeds v. Wright, 3 Bos. & Pull. 320,] 
 
 Trxistees of Liverpool DocJcs, 6 Ex. 543, Coates v. Eailton, 6 13. & C. 422. 
 
 }iost, where the bill of lading was for (Ji) \_Eowe v. Pickford, 1 Moore, 526, and 
 
 delivery to the vendor or his assigns. 8 Taunt. 83.] See Tucler v. Kumphrey, 4 
 
 Gabarron v. Kreeft, L. E. 10 Ex. 274 T 44 Bing. 516. 
 
 L. J. Ex. 238 ; Shepherd v. Harrison, L. R. (l) 9 M. & AV. 533. Tliere are contiict- 
 
 4 (l- B. 196, 493. See Merchant Bank- iug authorities upon this subject. See 
 
 ing Co. of London V. The Pheenix,kc.,Co., Hoist v. Potvnal, \ Esp. 241; Wright v. 
 
 46 L. J. Ch. 418; L. K. 5 Ch. D. 205, Zffioe*, 4 Esp. 82 ; Mills \. Ball, 2 '^.&,V. 
 
 where the goods were loaded in trucks 461 ; Oppenheiin v. Russell, 3 B. & P. 54 ; 
 
 sent by the purchasers, and under the cir- Foster v. Frampton, 6 B. & C. 107 ; James v. 
 
 cunistances it was held that on such load- Orifpn, 2 M. & AV. 633, per Parke, B., 
 
 iug the transitus was at an end. Jones v. Jones, 8 M. & W. 431. 
 
 (g) Ellis V. Hunt, 3 Term Eep. in K. B. (/») 26 Geo. 3, c. 59, s. 4, now repealed. 
 464.
 
 4l2 sT()iM'A(ii: Ix tkaXisitu. 
 
 Part IV. [amount. They did not enter or pay the duties for it within iwentij 
 
 days, l)ut before the expiration of that period became bankrupts, and 
 
 the bill accepted by them was not paid. The wine was conveyed to 
 tlic King's warehouse,, according to the statute. The assignees of 
 Leyland and Cragg first, and after them an agent of the consignor, 
 claimed the wine of the officers of revenue within the three months. 
 The wine, hoAvever, was not delivered to either party, but was pub- 
 licly sold at the expiration of the three months, and the assignees of 
 Leyland and Cragg brought an action against the broker for the over- 
 plus price. The question in the canse therefore was, Avhether the 
 claim made by the agent of the consignor -was a legal stoppage of 
 the goods in transitu, before they had come to the j^ossession of the 
 consignee ; and Lord Kexyox, before Avhom the cause was tried, held 
 it to be so, and the plaintiffs failed in their suit. This doctrine Avas 
 recognised and adopted by Lord Ellenhokougu in a subsequent case 
 relating to Avine sent to the King's Avarchousc under this statute, 
 Avhich Avill be more fully stated for another pnrpose in a subsequent 
 part of this chapter (a) . 
 
 In this last case the claim Avas made before the time arrived at 
 Avhich the consignee had a right to take actual possession. In the 
 case of the goods brought by the waggon to the inn, that time had 
 arrived : the exercise of the right Avas alone prevented by an extrinsic 
 circumstance wholly unconnected with the conveyance or deliA'cry of 
 the goods.] 
 
 Sometimes a deliA'cry of part of a cargo operates as a constructive 
 delivery of the Avhole, so as to prevent a stoppage in transitu. Thus 
 the delivery of part of the goods sold under one entire contract to the 
 purchaser, without any intention on the part of the seller to retain 
 the rest, is deemed a delivery of the Avliole [b) ; but this rule is con- 
 fined to cases where the delivery of part is intended to be a delivery 
 of the Avhole (c). In Bolton y. Lancashire and Yorkshire By. Co. [d), 
 AViLLDS, J., said : " Then, as to the alleged delivery of part of the 
 goods and the effect of that upon the vendor's right to stop the rest, 
 there have been different expressions of opinions at various times as 
 to Avhether the delivery of a portion of the goods, the subject of an 
 entire contract, operates as a constructive delivery of the whole, so as 
 to put an end to the right of stopping in transitu. It Avas supposed 
 to have been throAvn out by Tauxton, J., that a delivery of part 
 operated as a constructive delivery of thcAA'hole; but that doctrine 
 has since been called in question, and dissented from ; and it is now 
 lield that the delivery of part operates as a constructive delivery of 
 the Avhole only where the delivery of part takes place in the course of 
 
 («) [yorthei/ V. Field, 2 Esp. N. P. C. part delivery of a cargo is uot^;-//;i« facie 
 
 613 ;] yix V. Olive, post, p. •124. ilelivei-y of tlie whole, per Beett, L. J., 8. C. 
 
 (h) Hammond v. Anderson, 1 X. K. 69; (r) Simmons v. Stoift, 5 B. & C. 857; 
 
 Hanson v. Meyer, 6 East, 61-4; Sh'.h/ w Tlimney v. Poinlz,4:\i. & Ad. o68; Dixon v. 
 
 Sai/ward, 2 Hcu. Black 501; Ti'.rne'r v. Ta/es, 5 B. & Ad. 313. 
 
 Scovell, 11 M. it AV. 2S; ITx parte Gibh, {d) L. II. 1 C. V. -431; 35 L. .J. C. 1'. 
 
 45 L. J. B. 10; L. U. 1 Ch. D. 101; He 137. 
 McLaren, 48 L. J. B. 49. It seems that
 
 DKI;MEI' in Tl^VNSlTl'. <1'13 
 
 tlie delivery of tlic whole^ and tlie taking- possession by the bnyer of Chap. 10. 
 
 that part is the aceeptance of eonstriietive possession of the whole." ' 
 
 The delivery by a carrier is not complete Avhile he retains his lien for 
 tlie freight ; and therefore^ where a carrier having landed a part of an 
 entire cargo on a Avharf of the consignee, resumed it, and took the 
 whole to his own premises, in order to secure his own demand for 
 freight and carriage, this was held not to be such a delivery as to put 
 an end to the right of the consignor {e) . 
 
 And Avliere the master had actually delivered the goods to the 
 person by whom they were ordered, and at whose risk they were to 
 be imported, it was held that the consignor could not reclaim them, 
 although the bill of lading was for delivery to the consignor, and Avas 
 unendorsed, and the bill of exchange drawn for the price had been 
 dishonoured (/). If goods are delivered to a vendee at a wharf, and 
 shipped there in his name with the assent of the vendor, no sul)- 
 sequent stoppage can take place {(/) . But if a carrier, after notice 
 from the vendor to stop goods, does by mistake deliver them to the 
 vcmdee, the right of the vendor will not be taken away, even though, 
 owing to the vendee^s having become bankrupt, the goods may have 
 passed into the hands of the assignees (A) . 
 
 Where goods contracted to be sold and delivered " free on board " 
 were, according to the usage of the port of London, delivered on 
 board by the seller, and bills accepted for them by the purchaser by 
 whom the ship was selected, and in whose name bills of lading were 
 made out by the master, it was held, although the seller retained the 
 receipt given by the mate for the goods at the time of their shipment, 
 that the transit was determined (i) . 
 
 [Goods are frequently sold upon credit Avhile they remain in the 
 custody of a warehouseman, who is to deliver them to the buyer, upon 
 receiving an order for that purpose from tlie seller. In such cases 
 the custody of the warehouseman has been sometimes considered as 
 in the nature of a transit ; and questions have arisen as to the poAVcr 
 of the seller to countermand an order that may have been received by 
 the warehouseman, upon discovering the insolvency of the buyer (k) . 
 Upon such a question it is important to ascertain whether according 
 to the nature and subject matter of the contract, any other act on the 
 part of the seller is to precede the actual delivery of the good. If 
 nothing is to precede it, and the order has been handed by the buyer 
 to the warehouseman, and he has made the usual entry in his books 
 changing the name of the proprietor (/), or even if he has not made] 
 
 (p) Craw.iJiay v. IJades, 1 B. & C. 181. Hatfield, 5 B. & A. 632, as to the effect of 
 
 (/) Coxe V. Harden, 4 East, 211. the seller taking a receipt from the master 
 
 {(j) Noble V. Adams, 7 Taunt. 59, and 2 u£ the ship. 
 
 Marsh. 36G. (A) See Biron v. Yates, 5 B. & Ad. 313 ; 
 
 (//) Lilt V. Cowley, 1 Taunt. 169, and Lackingion w. Athertou, H iicQii,^.\\.^H; 
 
 2 Marsh. 457. ' 7 M. & G. 360. 
 
 (j) Cowasjee v. Thompson, 5 Moore, {I) [By Lord Ellenboroi'GU, Ch. .1., in 
 
 V.V.QA(')0; Schotsmansw Lancashire, Si'c, Harman v. Anderson, 2 Caniph. 243;] 
 
 Si/. Co., 36 L. J. Ch. 361 ; J.. 1{. 1 Kq. 349; Hammond v. Anderson, 1 B. it I', (x. R.) 
 
 2'Ch. 332. See Craven v. J?i/der, 6 69. 
 Taunt. 433, and 2 Marsh. 127; Suck v.
 
 414 STOrPAOE TX TRANSITU. 
 
 Part IV. [such entry («), tlic handing of the order to the warehouseman, is a 
 
 constructive taking possession by the buyer, and the order cannot be 
 
 countermanded. 
 
 But if anything is to be previously done on the part of the seller 
 to ascertain the amount of the price, or to ascertain and perfect the 
 - specific subject of the sale^ such, for instance, as -weighing the goods [b) , 
 an order for delivery may be countermanded before such previous act 
 lias been done. Thus Avhere a person contracted to sell all his starch, 
 then lying at the warehoiise of another, at a certain price per hun- 
 dred weight, to be paid for by a bill of exchange, and a certain 
 number of days were allowed for the delivery, and the seller wrote an 
 order to the warehouseman to weigh and deliver all his starch to the 
 buyer, and the buyer handed the order to the warehouseman, who 
 weighed a part, which the buyer removed, and the buyer failed 
 before the residue was weighed, it was held that the seller might j 
 lawfully countermand the delivery of the residue (c) . So where a | 
 quantity of oil in casks was sold, and according to the course of trade 
 the casks were to be searched by the seller's cooper, the quantity of ' 
 impure matter to be ascertained by a person attending on behalf of i 
 both parties, and the casks to be filled up at the seller's expense, it 
 was held that the order, which had been delivered to the warehouse- 
 man, might be countermanded before these things were done (f/) . On , 
 the other hand, upon a sale of ten tons of oil. being part of forty j 
 tons contained in one cistern, where nothing remained to be done j 
 except to draw ofl:' the ten from the forty, it was determined that the j 
 seller could not countermand the order after it had been placed in the | 
 hands of the warehouseman (e) . But although something may j 
 remain to be done, so that the delivery be not complete, yet if the 
 bnyer sell the goods to a third pei'son, and the Avharfinger certify to j 
 such third person that he has transferred the goods to his account, 1 
 who thereupon pays the price, the wharfinger thereby makes | 
 himself responsible to the third person, and cannot defend him- 
 self against his claim under the right of the first seller to stop the I 
 goods (/).] \ 
 
 A second vendee, who neglects to take actual or constructive | 
 possession, is in the same situation as the first vendee under whom he f! 
 claims. His title is defeasible on non-payment of the price by the !' 
 first vendee [g], unless, indeed, he take under a bond fide endorsement 
 to him of a bill of lading for valuable consideration. The defendants 
 contracted to make and deliver rails by equal monthly quantities, to 
 be paid for, as to part of the price, by the buyers' acceptances of four 
 
 (ff) riu the same case afterwanls l)y tlii' Ilindex. niiileJiouse, 7 East, 558; Hurri/w 
 
 court.]" JIaiiglex, 1 Campb. 552 ; Sn/jcf v. Mineft, 
 
 (b) IWifher.t v. Li/n. Holt's N. P. 18;] 11 East. 210; Zfujnrj/ v. Fur,]eU,2 C-Am\,h. 
 Zitlnrier v. Samuda, 1 Taunt. 265; Lucas \. 240; and Sloveld v. Hvijhe.t, 14 East, 380. 
 Dorrlen, ib. 278; Swanwiclr v. SotJiern, 9 ( f) Stonard v. Dunlin, 2 Campb. 344; 
 A. & E. 895 ; Wood v. Tassel, 6 Q. B. 234 ; Haioes v. Watson, 2 B. & C. 540. 
 Tanner \. ScoveU,\\^\. k^y. 28. (g) Craven v. Bi/der, 6 T.aunt. 433; 
 
 (c) Hanson v. Mei/er, 6 East, 614. Dixon v. Yates, 5 B. k Ad. 313 ; Rinall v. 
 {d) Wallace \. Breeds, l^Y.A%i,s22. Moaies,^ Bing. 574; Darls y. Hei/nolds, 
 (e) Whitehovse v. Frost, 12 East, 011; 4 Campb. 207." See lie Knifiht, I.. R. 13
 
 I 
 
 4'. HOW jjKiiiT iVK ?;>-KR('iST;n. 415 
 
 months' date ; and at the request of the buyers gave to theni^ at each Chap. 10. 
 delivery, a Avarrant, which Avas expressed to be for rails, deliverable 
 f. o. ]).'to the buyers or to their assigns by indorsement. The buyers 
 pledged the warrants with the plaintiffs, and afterwards became bank- 
 rupt — Held, that by the usage of the iron trade, the Avarrants in that 
 form were a negotiable security, giving the holders priority over the 
 defendants' lien as unpaid vendors [h). 
 
 4. Hoio the right of Stoppage in Transitu is to be exercised. 
 
 It has been decided that the insolvency or bankruptcy of the 
 buyer will not of itself determine the transit (i). But in order to 
 exercise this right of stoppage in transitu, it is not requisite that the 
 vendor should obtain actual possession of the goods while on their Avay 
 to their destination. His course is, to give notice to the carrier not 
 to deliver the goods to the vendee." It is the carrier's duty to attend 
 to such notice, and if, after the receipt of it, he delivers the goods to 
 the vendee, he will be responsible to the A'cndor for the loss he may 
 thereby sustain (A). And the vendor may, after such notice, main- 
 tain an action of trover for the goods against the person to Avhom they 
 have been improperly delivered (/). 
 
 But to make such notice effectual, it must be given either to the 
 person who has the immediate custody of the goods, or to the prin- 
 cipal whose servant has the custody of them, at such a time, and 
 under such circumstances, as that he may, by the exercise of reason- 
 able diligence, communicate it to his servant in time to prevent the 
 delivery to the vendee. Therefore, Avhere timber was sent from 
 Quebec, to be delivered at port FleetAvood in Lancashire, a notice of 
 stoppage in transitu, given to the shipowner at Montrose while the 
 goods were on their voyage, whereupon he sent a letter to await the 
 arrival of the captain at Fleetwood, directing him to deliver the cargo 
 to the agents of the vendor, was held not to be sufficient {m). 
 
 A stoppage to be effectual, must be made by the vendor's authority, 
 during the transit; his adoption of it after the transit is completed 
 Avill not devest the property of the vendee, " for the ratification must 
 be made at a time, and under circumstances, in Avhich the ratifying 
 party might himself have lawfully done the act which he ratifies" (??). 
 
 Cli. 1). G28, where goods were resold and Kep. 231. M//s v. i7i(»/, 3Term Rep. 4G4. 
 
 the bill of ladhig was made out in tlie Scott v. Pettit, 3 Bos. & Pull. 471. 
 
 name of sub-purchaser. {¥) BothUngJc v. Iiiffh'x, 3 P]ast, 397. 
 
 (//) 2[erchant Bankinrj Co. of Loudon v. Hunter v. Beale, 3 Term Eep. 466 ; Smith's 
 
 P/iceiu.v Bessemer Steel Co., 46 L. J. Ch. Mercantile Law, p. 5.^)8. The vendor may 
 
 418; L. R. 5 Ch. D. 205. This case seems require the delivery of the o-iwds to himself, 
 
 governed by the law of estoppel, or by The Tigress, 32 L. J. Ad. 97. 
 general principles of equity. See now (/) Litt v. Coiuley, 2 Marsh. 457. 
 
 40 & 41 X'ict. c. 39, s. 5, jjosf, 426. (iii) IFJiitehead v. Anderson, 9 Mee.& W. 
 
 (/) Haswell v. Runt, cited in 5 Teim 518. 
 
 {n) Bird v, Broun, 4 Ex. 786, per cur.
 
 416 RTOPPAOR IN TliANSlTT. 
 
 Part IV. 
 
 ."). By irliat nrtti the r'ujht of the Vendor may he taken aivay. 
 
 Next, wc arc to consider by wliat acts the viglit of tlic consio-nor 
 may be taken away before the erd of the transit. 
 
 [The bill of lading, in all its nsnal forms, contains the word 
 " assif/ns ; " bnt it will be proper to advert again to the diiferent 
 forms in common nse. Sometimes it is made for delivery to the 
 consignor by name or assigns ; sometimes to order or assigns, not 
 naming any person ; and at other times to the consignee by name or 
 assigns. In the two first cases, the consignor either transmits it 
 withont any endorsement, or endorses his own name generally upon 
 it, without mentioning any other person ; or endorses it specially for 
 delivery to a person named by the endorsement (a) . Occasionally, 
 too, particular conditions or restrictions respecting the delivery are 
 mentioned in the endorsement. It will be immediately perceived, 
 that in this respect there is a strong resemblance [b) between this 
 instrument and a promissory note. The mere possession of a pro- 
 missory note, made payable to another person, and not endorsed by 
 him, gives the holder no power to endorse over the note. Nor ought 
 the mere possession of a bill of lading, made for delivery to the con- 
 signor, and not endorsed by him, to induce any one to believe that 
 the holder is authorised to dispose of the goods (r). On the other 
 hand, if the bill of lading be originally made for delivery to the con- 
 signee, or, being made for delivery to the consignor or assigns, or to 
 order or assigns, be endorsed by the consignor either to a third 
 person by name, or generally without designating any person, it may 
 on the first view be thought that the person named in these two first 
 cases, or who is the holder of the instrument in the latter case, has 
 authority to dispose of the goods as he may think proper. 
 
 In what follows, the Avord consignee will be used to denote such 
 a person, and the bill of lading spoken of is to be understood as fall- 
 ing within one of these three descriptions last mentioned, unless the 
 contrary is pointed out. 
 
 It frequently happens that the consignee, having received the 
 bill of lading, sells the goods for a valuable consideration, or raises 
 money upon them before their arrival, and delivers over the bill 
 of lading to a third person, who is wholly ignorant of the nature of 
 the terms of consignment, and does not know that the consignee is 
 not absolutely entitled to receive and dispose of them : under such] 
 
 (a) As to the necessity of Landing over of the endorsement, before such enactment, 
 
 the hill cf lading, and the indorsee accept- being only to transfer the right of property 
 
 iiig the same in order to make the property in the goods, but not the contract itself, - 
 
 j)ass. See Dracachi v. Anrjlo U.N. Co., Snn(ler.<t y. Vanzeller,-i Q.B. 260. Thomp- 
 
 L. R. 3 C. P. 190 ; Wait v. Baker, 2 Ex. 1 ; .lou v. Lowini/, 14 M. & W. 103. Howard 
 
 Bare V. Dre.iaer, 7 H. L. C. 290. v. Shepherd, 9 B. k C. 207 ; see sect. 2 of 
 
 (i) Buttheeudorseecould, not before 18 & the Act in .\pp. 
 19 Vict. c. Ill, s. 1, ante, p. 275, maintain (c) Ante, p. 260. And see Tan Casleel 
 
 an action on it in his own name, the elTcct V. Booker, 2 Kx. 7U3, mile, y. 2fi8.
 
 5. WHAT APTR OF VENDOU WILL PREVENT. 417 
 
 [cirrumstances^ a very important question of law lias arisen upon the Chap. 10. 
 
 right of the consignor to countermand the delivery as between him 
 
 and the person to whom the bill of lading has been thus delivered 
 without any fraud or collusion. 
 
 Of tlie frequency of the practice to assign bills of lading among 
 merchants, and the conveniency of the practice in many cases, there 
 is no doubt ; but not every mercantile practice of frequent use, and 
 even of general convenience is, or ought to become, in all its conse- 
 quences, a part of the law of the land ; for, if such a rule were 
 adopted, the law must in many cases depart from its own principles, 
 and vary with the varying fashions of the times ; nevertheless, the 
 laAv of England does adojjt into its own bosom many of the ancient 
 customs and usages of merchants, and stretch forth its arm to assert 
 and maintain them, when they are found consonant to legal reason 
 and legal wisdom, and most especially when they are calculated to 
 ])romote honesty and to prevent fraud. And upon the subject now 
 under consideration, the question is, what extent of legal right the 
 act of the consignee confers upon his assignee? {d) The earliest 
 mention of this subject in our law books is in the case of Evans v. 
 Martlett (e), in which Holt, C. J., said, " the consignee of a bill 
 of lading has such a property that he may assign it over.^^ And 
 Shower said, ''that it had been adjudged so in the Exchequer." But 
 in this case the question upon the effect of such an assignment was 
 not properly before the court, and does not appear to have been 
 discussed or argued ; and the case supposed to be referred to by 
 Shower has not been found. Tn the case of Snee v. Prescott, before 
 cited, the right of the pawnee of the bill of lading, as against the 
 consignor, was not noticed or insisted upon. In the case of Appleby 
 v. Pollock, which Mas tried l)cfore Chief Justice Lee at Guildhall (/), 
 it a])peared that one Brand shipped certain goods at Leith, and con- 
 signed them to one Stratton, in Loudon. Stratton, as soon as he 
 received the bill of lading, by endorsement thereon assigned the 
 goods to the plaintiff for IGO/., and soon afterwards became a bank- 
 rupt. Brand, hearing of the bankruptcy, took process out of some 
 Court in Scotland, to attach the goods in the hands of Pollock, the 
 master of the ship ; but the ship having left Leith, the process was 
 executed at sea. Upon the arrival of the ship at London, the master 
 refused to deliver the goods to the plaintiff', Appleby, unless he would 
 indemnify him against the process in Scotland, and thereupon Appleby 
 l)rought the present action to recover the value of the goods. At the 
 trial of the cause, the Chief Justice declared himself to be of opinion] 
 
 {d) [According to Emerigoii, the unpaid (e) [1 Lord Raym. 271; 12 Mod. 156; 
 
 ppllor is not, hv the law of France, affected 3 ii&Wi 220; but tlie report in Salkeld does 
 
 liy a transfer of the hill of lading.] It not contain this dictum. J 
 
 niust be renienibored tliat the parts within (/) [Trinity Term, 21 Geo. 2. This ease, 
 
 brackets in this and subseciuent pages are which is here ((noted from two manuscript 
 
 taken from tlic 'A\i ed. of this work, pub- notes, taken by different jK-rsons, does not 
 
 lished in 1827. ^^ce the present enactment ajipear to have been noticed in any of the 
 
 as to transferring rights of suit to indorsee subsequent cases. In one of the notes, the 
 
 of bill of lading in certain cases, noticed process is s.iid to have issued out of the 
 
 Hiite, p. 27.'> Admiralty Court, in Scotland."! 
 
 .2 K
 
 418 STOPPAOK IN TKAXsTTr 
 
 Part. IV. [that the assig-nmont gave tlic plaintiff a sufficient property to maintain 
 tlic action, if, uniler the circumstances, lie Avas entitled to do so. The 
 general question, upon the right of the consignor to stop the goods 
 and countermand the delivery, as against an assignee of the bill of 
 lading, does not appear to have been agitated : parol evidence Avas 
 given, that by the law of Scotland, if goods are arrested, the holder 
 must give security not to part with them, and the defendant relied on 
 the effect of the process by Avhich these goods Averc attached; as to 
 which the Chief Justice said, ' If the process could have attached 
 these goods it could only have done so Avithin the jurisdiction of the 
 court ; and it does not appear that the place where the goods were 
 attached was within the jurisdiction of the court, and it lay upon the 
 defendant to make that out.^^ And the Chief Justice therefore directed 
 the jury to find a verdict for the plaintiff to the value of the goods. 
 In the case of IVrlyht v. Campbell {a), Avhich arose on a consignment 
 of goods to one Swanwiek, Avho was the factor of the consignor, and 
 who by endorsement assigned the bill of lading to a third person, 
 Lord AIaxsfield said, "If the goods are bond fide sold by the factor at 
 sea (as they may be where no delivery can be giA'cn), the sale will be 
 good : the vendee shall hold them by Aurtue of the bill of sale, thougli 
 no actual possession is delivered ; and the owner can never dispute 
 Avith the vendee, because the goods Avere sold bond fide and with the 
 owner^s own authority : " but the court, thinking there Avas reason to 
 believe the assignment to liaA'c been fraudulent, sent the cause to a 
 second trial, in order that the jury might determine that point. In the 
 case of Caldwell v. Ball {b), it was considered by the court, that a bill 
 of lading is assignable in its natiire, and that by endorsement thereof 
 the property vests in the a^^signee ; but that case did not properly turn 
 upon the effect of the assignment as between the consignor and the 
 assignee, and Avas decided upon the ground that the defendant, the 
 master of the ship, had discharged his duty by delivering the goods to 
 the person to whom the consignor had first endorsed the bill of lading, 
 and who appeared, upon the whole, to have the better title ; the right 
 of stoppage in transitu, or the divestment of that right, not being in 
 question. In the case oi Hibbert v. Carter (c), Avhich happened very 
 soon afterwards, and Avas a question of interest as requisite to sustain 
 an action upon a policy of insurance, the court thought that the 
 endorsement of the bill of lading by the consignor to a third person 
 absolutely transferred the property, until it appeared to have been 
 made only for the purpose of binding the net proceeds as a security 
 for a pre-existing debt, and that the consignor Avas not intended to be 
 discharged from the debt, if the goods had perished on the A-OA'age. 
 
 Shortly after this last determination, the question now under con- 
 sideration was brought before the Court of King's Bench for decision, as 
 the point and hinge of the cause of Lickbarrow and Others v. Mason (</),] 
 
 (a) [4 Burr. 2046; 1 Black. Rep. 628. (J) [1 Term Bep. K. B. 205.] 
 
 Accordins to the report in Blaclcstone, Mr. {c) [1 Term Rep. K. B. 745.] 
 
 Justice Yates expressed a doubt, " whether {cJ) [2 Term Rep. K. H. G3. The facts 
 
 an assiornment of a hill of lading. made it appear upon the plaintiff's evidence, to 
 
 negotiable in the same degree as a bill of which the defendants demurred. See the 
 
 exchange."] very learned opiuiou delivered by Mr.
 
 O. WHAT ACTS OF VENTtOT^ WTLL TT^EVENT. 419 
 
 [in wliicli case it appeared that Messrs. Turing & Co. Lad shipped Char). 10. 
 goods at Middleburgh for Liverpool, by the order of one Freeman,, of -— - 
 Rotterdam, and drawn hills of exchange upon him for the price, and 
 taken from the master three bills of lading for delivery of the goods 
 to order or assigns, two of which they endorsed in blank, and trans- 
 mitted them, together with an invoice, to Freeman at Rotterdam, who 
 sent them and the invoice to the plaintiffs at Liverpool, in the same 
 state in which lie received them, that they might receive and sell the 
 goods on his account, and drew bills of exchange upon them to nearly 
 the amount. Freeman and the plaintiffs accepted the bills of exchange 
 drawn upon them respectivel}' ; but, between the ship's departure and 
 her arrival at Liverpool, Freeman became a banki'upt and absconded, 
 and Turing & Co. sent another of the bills of lading to the defendants, 
 endorsed specially for delivery to them ; and they thereupon obtained 
 the goods from the master. Turing & Co. afterwards paid the bills 
 of exchange drawn by them upon Freeman, and the plaintiffs paid 
 those which had been drawn upon them by Freeman. The court, 
 after solemn argument and deliberation, held, that by an assignment 
 made by the consignee for a valuable consideration [e), and without 
 notice to the assignee that the goods were not paid for, the property 
 Avas absolutely transferred to the assignee, and that the consignor 
 was by such assignment deprived of the right to stop the goods in 
 transitu, which, as against the original consignee, he might have 
 exercised. From this decision an appeal was made by writ of error 
 to the judges of the Courts of Common Pleas and Exchequer (/), 
 who reversed the judgment of the Court of King^s Bench, holding 
 that the assignment gave to the assignee no other right or title than 
 that which the consignee himsclt' possessed, and consequently that the 
 consignor had a right to stop the goods, and prevent their delivery to 
 the assignee. The judgment was by a second writ of error brought 
 before the House of Lords ; but their lordships, thinking the facts 
 of the case were not laid before them in such a manner as to warrant 
 a decision of the point of law, directed the cause to be tried again by 
 a jury, in order to remedy that defect. It was accordingly tried 
 again, and the Court of King's Bench (at the head of which Lord 
 Kexyon had in the meantime been placed, and who had in another 
 cause {g) expressed his approbation of the first judgment in this case, 
 as being founded upon principles of policy and common honesty,) 
 again decided the case without argument, in conformity to the first 
 decision of that Court ; and in order that the question might again 
 be carried to the other tribunals (A), another writ of error was brouglit, 
 but it was afterwards abandoned ; and it is now the admitted doctrine 
 in our courts, that the consignee may, under the circumstances before] 
 
 Justice BuLLER in the House of Lords, G See Chartered Bank of India v. Henderson, 
 
 East, 21, notes.] L. K. 5 Priv. C. 501. 
 
 (e) The consideration may be a past one. (/) 1 Hen. Black. 367. 
 
 LeasJc v. Scott, 46 L. J. Q. B. itc, 576; {r/) Solomons v. Xissen, 2 Term Bep. 
 
 L. R. 2 Q. B. D. 376 ; Sodger v. The Comj)- K. B. 674. 
 
 toir d'Escompie de Paris, 38 L. J. P. C. (Z) 5 Term Pvep. K. B. 6S3. 
 30, L. Pv. 2 P. C. App. 393, dissented from. 
 
 3 E 3
 
 420 • s'roi'i'AdK IN TK'ANsrrr — 
 
 Pali IV. [stated, confer an absolute riglit and property upon a third person, 
 
 indefeasible by any claim on the part of the consignor. At the second 
 
 trial of this cause, it was the opinion of the jury, and it Avas stated to 
 be so in the verdict, that by the custom of merchants, bills of lading- 
 expressing goods to have been shipped by any person to be delivered 
 to order or assigns, are, before the ship's arrival, negotiable and 
 transferable by him to any other person, by his endorsing his name, 
 and delivering or transmitting the same so endorsed to such other 
 person ; and that, by such endorsement, delivery, and transmission 
 to such other person, the property is transferred to such other person. 
 And evidence to the ^«ame effect Avas given at a trial in a subsequent 
 case {a). 
 
 The right of parties may often depend upon the state of things at 
 the time when the bill of lading is endorsed by the consignor ; thus, 
 where the consignor was indebted to the consignee on the balance of 
 accounts, including bills of exchange still nmning, accepted by the 
 consignee for him, it was held that the goods shipped on aeconnt of 
 this balance could not be stopped by the consignor upon the consignee 
 becoming insolvent before the bills of exchange were paid.] 
 
 This Avas decided in the case of Vtriue v. Jewell [b], which Avas an 
 action of trover for 180 quarters of barley. It appeared that on the 
 30tli of November, 1813, this barley Avas shipped at Yarmouth, by 
 Daniel Bloom, on board the sloop Dolphin, of which the defendant 
 Avas master. The bill of lading made the barley deliverable in the 
 port of London, to the order of the shipper, and was endorsed by him 
 to Burrowes and AYinn, corn-factors and corn merchants in the city. 
 They received the bill of lading on the 1th of December. In the 
 month of October preceding, J. AY. Ayres, for their accommodation, 
 had accepted a bill for 350/., Avhich Avas to become due in nine days, 
 and they owed him several hundred pounds besides, on another 
 account. They had then, to the knowledge of Ayres, become much 
 embarrassed in their affairs, and nnable to provide for the bill of 
 exchange. They therefore, for the purpose of covering him, of 
 their own accord, proposed to endorse to him the bill of lading of the 
 barley. They accordingly did so, on the 6th of December, and made 
 out a regular sale-note to him. On the same day they stopped pay- 
 ment. Ayres immediately after endorsed the bill of lading, and made 
 out a similar note to the plaintiffs. The bill of exchange for 3.50 A, 
 
 {<i) Haille V. Smith, 1 Bos. & Pull. 5G3. 18 .■;: 19 Vict. c. 111. See ante, p. 275. 
 
 A hill of ladins is an instnuneiit liaviiig, Ly Except in cases within the factors Acts a 
 
 the custom of merchants, a virtue and delivery of a hill of ladino^ h\ a jierson un- 
 
 effieacy peculiar to itself. Akerman v. authorised to deal, conveys no pro]>erty in 
 
 Mumj)hreii,\ C. k P. .53, and Jenkins v. the poods wliich it represents, — in this re- 
 
 Vshorne, 8 Scott's X. E. 51(1. Formerly spect it is unlike a hill of exchange, 
 
 the endorsement only transferred the right Gi(rnei/ v. Belirend, 3 E. & K. f)22, \iOV 
 
 of property, and not the contract itself, so C'AAirBET.L, C. J. Schuster v. M'Kellar. 
 
 as to enal)le the endorsee to sue upon it. 7 K. k K. 704. Pease v. Gluahee, L. R. 1 
 
 Thompson v. Domini/, liM. & W. 403, and I'. C. 219, 35 L. J. P. C. C>C,. Gilbert v. 
 
 Sanders v. Vanzelltr, 4 Q. B. 260; Howard Gulqnon, L. K. 8 Ch. 16. 
 
 V. Shepherd, 9 B. & C. 297; but this, in (j,) 4 Campb. 31, and see the casi-s, a/i/?, 
 
 Certain cases, has been altered by the ))p. 271, et s'-q.
 
 5. AVJfAT AC'H OF VENDOK WILIi I'RKVMNT. 421 
 
 which Burrrowcs and "Winn had negotiated^ he paid regnhirly when Chap. 10, 
 
 it became due. TIic Dolphin arrived in the river Thames on the 17th 
 
 of December, and the barley being demanded by the plaintiffs, the 
 defendant refused to deliver it, having bad an indemnity from Bloom, 
 the consignor. At tlic time it was sliipped, and fi'om thence till the 
 endorsement of the bill of lading by Bnrrowes and Winn, Bloom 
 was indebted to Bnrrowes and Winn, npon the balance df accounts, 
 including bills of exchange then running, which they accepted for 
 him to the amount of 590/., being considerably more than the value 
 of the barley, and it was on account of this balance that the barley 
 was consif/ned to them. The bills so accepted were never i)aid by 
 Bnrrowes and AVinn, wdio l)ecame bankrupt in the end of December, 
 and were then indebted to Bloom above .2,000/. Lord Ellknborough 
 ruled that, "^^ under these circumstances. Bloom had no right to stop in 
 transitu, and that the barley being consigned toBurroAvesandAVlnn,on 
 account of the balance which then existed in their favour, the propei't y 
 vested in them absolutely. The transfer from them to Ayres Avould 
 not have defeated the right to stop in transitu. If the consignee does 
 endorse the bill of lading for a valuable consideration to a bond fide 
 purchaser without notice, the right to stop in transitu is gone as 
 against the endorsee, although it would have remained in force as 
 against the consignee, had the bill of lading not been endorsed. But 
 Ayres here had notice of the insolvency of Bnrrowes and Winn ; and if 
 against them there existed any right to stop 171 transitu, he could not 
 claim this barley. The circumstance, however, of Bloom being 
 indebted to them on the balance of accounts, divested him of all 
 control over the barley from the moment of the shipment. The non- 
 payment of the bills of exchange cannot be considered. The rights of 
 the parties must depend on the state of things when the bill of lading 
 was signed and endorsed. ^^ 
 
 In this ruling of the Chief Justice, the court, on motion for a new- 
 trial, concurred, observing, that under these circumstances Bnrrowes 
 and Winn were to be considered the piu'chasers of the goods for a 
 valuable consideration. 
 
 [The validity of an assignment is not conhned to those cases in 
 which the assignee has no notice that the goods have not been actually 
 })aid for in money. If the assignee takes the assignment bond fide 
 without notice of any such circumstance as would render the bill 
 of lading not fairly and honestly assignable, he acquires a good title 
 against a consignor. Goods sold are seldom actually paid for in 
 money at the time of their shipment ; in general, a bill of exchange 
 is drawn for the price: — If a person, knowing that such is the trans- 
 action, and that the bill of exchange has been accepted, takes an 
 assignment of the bill of lading fairly and honestly for a valuable 
 consideration, before the money becomes payable, without any reason 
 to know or apprehend that the consignee is likely to fiiil and not to 
 pay the money in due course, the consignor cannot prevent the 
 delivery of the" goods. This has been solemnly decided in the Court 
 of King's Bench. But if a person assist in contravening the actual 
 terms of the sale on the part of the consignor, or his reasonable]
 
 422 
 
 STOPPAGE IN TEANSlfU — 
 
 Part IV. [expectations arising out of them, or his right connected tlierewith ; 
 if, for instance, he knows that the consignee is in insolvent circum- 
 stances; that no bill has been accepted for the price, or that being 
 accepted it is not likchj to be paid: he Avill stand in the same situation 
 "svith the consignee, and his interposition under such circumstances 
 being in fraud of this right of the consignor, will not he aA'ailable to 
 defeat it [a) . So if he intervenes after the purchase and makes liini- 
 sclf a partner in the transaction with the first buyer, and engages, as 
 between them two, to pay for the goods, he cannot prevent the 
 exercise of this right, although he may previously liave accepted bills 
 drawn upon him by the buyer to a gi'cat part of the amount of the 
 price {b). A bill of lading was specially endorsed for the delivery of 
 the goods to one Voss, if he should accept and pay a bill of exchange 
 drawn upon him, and if not, then for delivery to the holder of the 
 draft. Yoss accepted the draft, and then endorsed the bill of lading 
 to another person for a valuable consideration, but he did not pay the 
 draft when it became due. Lord Ellexborougii held, that this con- 
 ditional endorsement made it incumbent on the purchaser to ascertain 
 whether the condition had been actually performed ; and that he had 
 ]io title to the goods (c). 
 
 But it was not understood that the consignee could in all cases, 
 by his subesequent endorsement or delivery of the bill of lading to a 
 third person, for a valuable consideration, and without fraud, defeat 
 the right of the consignor to stop the goods. The nature and object 
 of the consignment, and the character of the consignee must be 
 attended to. If the goods be sent to the consignee as a purchaser, he 
 may either sell or pledge them before their arrival, and if the bill of 
 lading has by its form required and received the endorsement of the 
 consignor, a second endorsement by the consignee is not necessary to 
 perfect the transaction between him and the third person. This will 
 appear by attending to the facts of the case oi Lickbarrow v. Mason. 
 Freeman, the consignee, was a purchaser from Turing & Co., the con- 
 signor; Freeman did not sell the goods to Lickbarrow & Co., the 
 ])laintilfs, but authorized them to receive the goods, and sell them on 
 las account, obtaining from them their acceptance of liis bills of 
 exchange on the credit of the bills of lading, and the expectation that 
 they might repay themselves out of the proceeds of the goods. The 
 bills of lading which were for delivery to order or assigns, were 
 endorsed generally by Turing & Co., the consignors, and were not 
 again endorsed by Freeman, the consignee. 
 
 Jjcforc the passing of the 4 Geo. 4, c. 83, amended by 6 Geo. 4, 
 c. 91', if goods were sent to the consignee as a factor, it was thought 
 that his possession of the bill of lading could not in reason giA'e him 
 any greater power over the goods before their arrival, than his actual 
 possession of them afterwards would do : and as in the case of actual] 
 
 («) Citmliif) \. Brown, 9 East, 506. (t-) Bari'oa v. Colea, 3 Coles, 3 Campb. 
 
 {Ij) Solomons v. yisseii, 2 Term IJcp. in 22. 
 13. K. 67i.
 
 0. AVII.VT ACTS OF VENDOR WILL TJiKVEXT. 42b 
 
 [possession, altliougli a factor miglit sell tlic goods^ and thereby bind Chap. 10. 
 his principal^ because his employment and authority Avcre to sell^ but 
 could not pawn or pledge them, because he is not by his employment 
 authorized so to do ; so before the arrival of the goods, it Avas held 
 that he could not devest the consignor's right to stop them, by 
 endorsing or delivering over the bill of lading as a pledge. 
 
 Indeed, the endorsement of a bill of lading Avas not considered to 
 be properly an actual transfer in itself, of the goods mentioned, but 
 rather evidence, or an act raising a presumption of such a transfer; 
 and consequently the object and legal effect of the endorsement might 
 be ascertained by other circumstances. Therefore, Avhere a bill of 
 lading was endorsed and transmitted by the consignor to an agent, 
 without valuable consideration, to enable him to receive the goods 
 therein mentioned, for the use of the consignor, in case the consignee 
 should fail ; it was doubted whether the agent could maintain an 
 action at law for the goods in his own name. The court app?ai"ji 
 inclined to think that he could not, but the cause in which tlie point 
 arose was decided on another ground (d). 
 
 And as on the one hand the endorsement or delivery of the bill of 
 lading by the consignor did not necessarily enable the consignee to 
 devest the consignor's right of stopping in transitu, so on the other 
 hand it was thought there might be circumstances equivalent to such 
 endorsement and delivery, which might enable the consignee to do 
 this. As Avhere Thompson & Co. sent goods from Ireland to London, 
 to be sold by Eustace & Holland, their factors thei-e, and wrote to 
 them to insure the goods, and sent them a bill of lading not endorsed, 
 but having the names of Eustace & Holland on the back, and being 
 applied to by them for an indorsement, answered by letter that if the 
 bill of ladinrj was not endorsed, it ivas a mistake, and they would send 
 an endorsement; upon which Eustace & Holland sold the goods; 
 and it afterwards happening that they were unable to pay bills drawn 
 upon them by Thompson k Co. on the general account, one Dick paid 
 those bills for the honour of the drawers, and knowing all these trans- 
 actions applied to them for an endorsement of the bill of lading, 
 which they sent him ; and Dick thereupon demanded the goods of 
 the master of the ship, who refused to deliver them to him, but 
 delivered them to the vendees of Eustace & Holland;, upon this 
 Dick brought an action against the master, which was tried before 
 Lord Kenyox^ and his lordship ruled that the plaintiff had, under 
 such circumstances, no right to take the goods out of the possession 
 of the vendees of Eustace & Holland ; Eustace & Holland being- 
 factors authorized to transfer the property in them, and having 
 actually done so [e]. 
 
 In the case last quoted there were special facts which were con- 
 sidered as equivalent to an endorsement of the bill of lading by the 
 consignor. But if there were not such facts, and the bill was for] 
 
 {d) [C'o.re V. i/ar(?e», 1 E;i8l, 211.] IJut (c) [^Dkk w Lumsdcii) Tcake'a N. P. 
 
 sec Jlorrisoii v. Gra^, ante, p. 272. l8'J.]
 
 424 
 
 STOlTAdK IX TRAN^rrr — 
 
 Part IV. [delivery to order or assigns, and transmitted imendorsed, it was 
 thought that tiie liohler thereof eoukl not, by an attempt to transfer 
 the property of the goods to a third person, devest the right of the 
 consignor to stop them i/i transitu. This Avill appear by the following 
 case. One Fox, a Avine merchant at London, having ordered five 
 pipes of Avine from ^Messrs. Abbot & Co., of Oporto, they loaded them 
 on board a vessel bound for London, and took from the master bills 
 of lading for delivery to order or assigns. One of these bills they 
 transmitted to Fox in a letter, wherein they said they had shij^ped the 
 wine on his account, had sent him a bill of lading, and draAvn upon 
 him for the price. Fox accepted the bill of exchange thus drawn upon 
 him, which Avas payable nine months after date. Before the bill of 
 exchange became due, the Avine arrived, and Fox not being able to 
 pay the duties, it Avas sent to the King's Avarehouse, under the statute 
 26 Geo. 3, c. 59 ; Avhile it remained there, Fox being indebted to one 
 Mary Nix, and called upon for payment, and unable to pay, sold the 
 Avine to her for 40/. then paid to him, and the amount of his debt. He 
 became bankrupt soon afterAvards ; and the agents of the consignors 
 liaving paid the duties, and obtained the goods^ ^Irs. Nix brought an 
 action against them for the value. The case Avas tried before Lord 
 Ellenjjorough ; and it was insisted, on behalf of the plaintiff, that 
 there was no difference betAveen the endorsement of a bill of lading 
 by the consignor, and the sending it enclosed in a letter of this 
 import. But his lordship declared himself to be of a different opinion 
 and held that the right of the consignor to stop the goods Avas not 
 devested luuler these circumstances («) . 
 
 But, in cases of this nature, an important and difficult ([ucstion of 
 fact may arise upon the fairness and honesty of the assignment ; and 
 even as between the consignor and the original consignee, the right 
 to stop the goods may be doubtful in the particular circumstances of 
 the case : and it Avould be a great hardship upon the OAvncrs and 
 masters of ships, if they Avere obliged to exercise a judgment upon 
 these doubtful matters of fact, and to decide upon them, and deliver 
 tlie goods at their own peril. But I apprehend the law does not 
 altogether cast this burden upon them. In the case of Caldwell v. 
 Ball, Avhich I Iuiac quoted just before, it Avas held that the master 
 had discharged himself by delivering the goods to the person to Avhom 
 the consignor first endorsed the bill of lading ; but in that case the 
 question arose between two consignees, to each of Avhom a bill of 
 lading liad been endorsed, and there had been no countermand or 
 attempt to stop in transitu, and the master happened to knoAV the 
 priority of endorsement, Avhich Avas substantially to the oAvners of the 
 ship, A*liereas it may often be out of the poAver of the master to 
 inform himself satisfactorily of the priority of endorsement. In an 
 earlier case, Avhich was tried before Chief Justice Lee, at Guildhall, 
 and Avhich Avas an action brought by the assignee of the original con- 
 signee against the master, who had delivered the goods to the person 
 to whom the consignor had sent another bill of lading as a security,] 
 
 (u) Nix V. Olice, sitt. at fiuildhall, licforc Lord Ei,LE>BOEoroii, Cli. J.j after Trinitv 
 Tcrui, 1805.
 
 5. WHAT ACTS l»F VK>y DOR WILL TKEVENT. 425 
 
 [and to enable liini to take possession of the goods on his behalf, if Chap. 10. 
 
 the eonsignce should fail, "which had been the ease; it appeared in 
 
 evidenee, ))y the testimony of merehants and masters of ships, that by 
 
 usage, in the ease of endorsement of bills of lading to different persons, 
 
 tlie master was at liberty to deliver to whiehever he thought proper ; 
 
 and upon that ground the Chief Justice directed the jury to tind 
 
 their verdict in favour of the defendant, and they accordingly did 
 
 so (fj). But perhaps this nde might, upon further consideration, be 
 
 held to put too much power into the master's hands, and it might in 
 
 some cases be inconsistent with the acknowledged right to sto}) hi 
 
 transitu, and defeat the benefieial exercise of it. And it may be 
 
 collected from a decision of the Court of Common Pleas (c), that if 
 
 the master, being required to deliver the goods to an agent of the 
 
 consignor, either expressly engaged to do so, or say that he will not 
 
 jiart with them, until he is certain of a safe delivery, and afterwards 
 
 deliver them to tlie consignee or the persons claiming under him, he 
 
 Avill be responsible to the consignor, provided it shall turn out that 
 
 the consignor Avas legally entitled to countermand the delivery and 
 
 take back the goods. 
 
 In general, where two opposite parties claim a right to receive the 
 goods, both or either of them will be willing to give an indemnity to 
 the master; and the master should in prudence deliver the goods to 
 the party upon whose indemnity he can most safely rely. But if a 
 satisfactory indemnity is not offered, and the master must exercise a 
 discretion, then, if the bill of ladincj has not been asshjned over by the 
 consignee, and he has failed, without doubt the master should deliver to 
 the person who claims for the use of the consignor. If the consignor 
 has endorsed bills of lading to different persons, as was the case in 
 Caldwell \. Ball, the master should deliver to the person to whom 
 the consignor hrst made the endorsement [d). If the consignee has 
 assigned the bill of lading, and the validity of the assignment be 
 questionable, it seems most proper for the master to deposit the 
 goods in a place of safety, and apply to the Court of Chancery by Avay 
 of interpleader, to compel the contending parties to litigate their 
 rights by an action between themselves [e). 
 
 V>y the law of France (/) the right of the "vendor, or of the person 
 who has advanced money at respondentia on the specific security of] 
 
 (6) [-Fearowv. 5o(«e;'j, 1 H. KL 3Gi ('<).] tioiied iu the text au application can in 
 
 (f) [^M'dls V. Ball, 2 Bos. and PulL 4-57. preucral bu made for relief under the Inter- 
 
 The defendant was a wharfinger, but the pleader Acts, 1 & 2 Will. 4, e. 58, and Acts 
 
 doctrine applies equally to the case of a passed for amending that statute. Such an 
 
 master.] application by a defendant must be made 
 
 (rf) See Gllhert v. Gitignon, L. E. 8, after being served with a writ of summons, 
 
 Cli. 16. and before delivering a defence. Judica- 
 
 (e) [See the three cases in 1 Emcrigon, ture Act, 1875, o. 1, r. 2; Arch, by I'ren- 
 
 317, 318, quoted by Sir William Scott, in tice, 13tli ed. p. 1115. Faforni v. Cam^- 
 
 the case of the Comlan/ia, 6 Rob. 328.] hrU, 12 M. & W. 277. Liiidsei/ v. Barron, 
 
 This, it must be remembered, is taken from G C. B. 591. Jlorfon \. Earl of Devon, 
 
 the 5th ed. of this work, published iu 1827. 4 Ex. 497. Crawshai/ v. Thornfon, 2 
 
 By the Judicature Acts the Court of Chan- Myl. & Cr. 1. 
 
 eery and other superior coiu-ts arc luiited, (/) [Valin on the French Ordinance, liv. 
 
 and form one court, and law and equity 2, tit. 10, art. 3 ; Emerigon, torn. 1, p. 319. 
 
 has been fused. In such a case as men- See ante, p. 102.
 
 426 STOrPA(iK IN TRANSITU. 
 
 Part IV. [j?ootls, cannot 1)C devested by an assignment of the invoice^ or of the 
 
 bill of hiding ; Enicrigou and Valin agree npon this pointy although 
 
 they dift'er as to the effect of such an assignment upon the right oh' 
 the general creditors of the assignor ; the former maintaining that 
 their right is not devested by it ; the latter insisting that it is devested 
 in favour of the operations of commerce ; ])ut admitting this to be 
 contrary to tlie general policy of the French law, T^'hich requires 
 actual delivery o£ possession in order to effect this purpose, according 
 to its general maxim, that a mere assignment does not vest the 
 property, simple transport ne saisit. The ordinance, as I have already 
 observed (a), expressly declares that the sale of a ship at sea shall not 
 prejudice the creditors of the vendor.] 
 Effect of By 40 & 41 Yict. c. 39, s. 5, " where any document of title to goods 
 
 endorsement jjj^g Ijgen lawfully endorsed or otherwise transferred to any person as 
 oftUle'to^ a vendee or owner of the goods, and such person transfers such 
 goods. document by indorsement (or by delivery where the document is by 
 
 custom, or by its express terms transferable by delivery, or makes 
 the goods deliverable to the bearer) to a person who takes the same 
 bond fide, and for a valuable consideration, the last mentioned 
 transfer shall have the same effect for defeating any vendor's lien or 
 right of stoppage in transitu as the transfer of a bill of lading has for 
 defeating the right of stoppage in transitu" {b) . 
 
 6. Of the Factors Acts. 
 
 Formerly, a factor having only authority to sell and not to pledge 
 the goods of his principal, could not devest the consignor of the right 
 to stop the goods in transitu, by endorsing or delivering over the bill 
 of lading as a pledge, any more than he could by delivery of the 
 goods themselves by way of pledge (c) . The law of England upon 
 this subject differed from that of all commercial nations, except the 
 United States of America {d), and there seems reason to suppose that 
 this anomaly was the result of some mistake in the report of a case 
 of Paterson v. Task {e), decided by Lee, C. J., in 1742, to which the 
 judges, through a long series of decisions, felt themselves bound (/), 
 but not without much variety of opinion respecting the policy of the 
 law, to adhere {ff). The opinion of mercantile men on the other hand 
 
 (a) [Liv. 2, tit. 10, art.[3. See aitfe, part (e) Sec the evidence of Mr. Serj^eant 
 I, chap. 1, see. I, p. 23, and Code de Com. Manning before the Committee of the 
 art. 196.] House of Commons on the bill of 1822 
 
 (b) See JenAy/iis v. Usborne, 7 M. & G. and 1823. 
 
 678. Kingnford v. Merry, 1 H. & X. 503 ; (/) Xewson v. Thornton, 6 East, 1 7. 
 
 eases before this Act. Martini v. Coles, 1 M. & S. 110. t<liiplei/ 
 
 ((•) Martini v. Coles, 1 M. & S. 140. v. Kymer, 1 M. & S. 483. 8olly v. Rath- 
 
 Shipley v. Ki/mer, ibid. 484. Graham v. Lone, 2 M. & S. 298. Cochran v. Irlam, 
 
 Dyster, 6 M.'& S. 1. 2 M. & S. 301. 
 
 {(l) Since the pas.sing of the 6 Geo. 4, (//) See Queiroz v. Truemaii, 3 I?. & C. 
 
 simikir Acts have been passed by the Lc- 312, jxr cur. Williams v. Barton, 3 13ing. 
 
 pislatures of New York and Khwle Island. 139, per cur. 
 Kent's Com. Ediii. edit. p. 544.
 
 G. OF THE FACTORS ACTS. 4-27 
 
 was almost unanimous, that a factor or commercial agent entrusted Chap. 10. 
 by his principal with the symbols of ownership of property should be 
 deemed the true owner thereof, in respect of third persons dealing 
 Avitli him fairly in the course of business, whether as purchasers or 
 pawnees, and in ignorance of his real character. 
 
 In deference to this opinion the Acts called the Factors Acts were Factors Acts. 
 passed. They arc, 1 Geo. 4, c. 83; 6 Geo. 4, c. 94; 5 & 6 Vict. c. 6 Geo. 4, c. 94. 
 39; 40 & 41 Vict. c. 39. It was by 6 Geo. 4, c. 94, enacted. That 
 the person in whose name goods are shipped is to be deemed the true 
 owner thereof, so far as to entitle the consignee to a lien thereon in 
 respect of any money or negotiable security advanced by him to such 
 person, or received by such person to his use, if he has not notice by 
 the bill of lading or otherwise, at or before the advance or receipt, 
 that such person is not the actual and bond fide owner of the goods; 
 and such person shall be taken for the purposes of the Act to have 
 been entrusted with the goods for the purpose of consignment or of 
 sale, unless the contrary be made to appear [h) . 
 
 That a person (i) entrusted with and in possession of a bill of 
 lading, or of any of the warrants, certificates, or orders mentioned in 
 the Act, is to be deemed the true owner of the goods described 
 therein, so far as to give validity to any contract or agreement made 
 by him for the sale or disposition {k) of the goods, o?' the deposit or 
 pledge thereof, if the buyer, disponee or pawnee has not notice, by the 
 document or otherwise, that such person is not the actual and bond 
 fide owner of the goods (/). 
 
 That if such person deposit or pledge the goods as security for a 
 pre-existing debt or demand, he who so takes the deposit or pledge 
 without notice shall acquire such right, title, or interest, and no 
 further or other than was possessed by the person making the deposit 
 or pledge {m) . 
 
 That any person may contract /or the purchase of goods Avitli any 
 agent entrusted with the goods, or to wlumi they may be consigned 
 and receive and pay for the same to the agent, noiivithstandinij he 
 shall have notice that the party with whom he contracts is an agent, 
 if such contract and payment be made in the ordinary and usual 
 course of business, and he has not, at the time of the contract or 
 payment, notice that the agent is not authorized to sell or receive 
 the price {n) . 
 
 That any person may accept any goods, or any such document as 
 aforesaid, on deposit or pledge from any factor or agent, notwith- 
 
 (/*) 6 Geo. 4, c. 9i, s. 1. This Act will be Gorst, L. R. 4 Eq. 315 ; Taylor v. Trneman, 
 
 fouud in the Appendix. M. & M. io3. 
 
 (?) The G Geo. 4 it seems only applies (ii) Sect. 4. A wharfinger who receives 
 
 to persons entrusted as factors and agents, flour in that capacity is not within this 
 
 Jenkyns v. Ushorne, 7 M. & G. 201, per provision, although he is in the habit of 
 
 TiXDAL, C. J. See 40 & 41 Vict. c. 39. doing business as a flour-factor. Monlc v. 
 
 {k) See Taylor v. Kymer^ 3 B. & Ad. WJiittenhury, 2 B. & Ad. 481; Johnson v. 
 
 337. Credit Li/oiiais, 47 L. J. C. P. 241; L. R. 2 
 
 (0 Sect. 2. C. P. D. 224 ; 3 C. P. D. 32; Cole v. Xori/i 
 
 (m) 6 Geo. 4, c. 94, s. 3. See Jevan v. Western Bank, post, 432, 
 Whitworlh, L. II. 2 Eq. 692 ; Macnee v.
 
 428 sT<tri'A(;K ix transitu. 
 
 Part IV. fttaudiiig he shall have notice that tlic party is a factor or agent; hut 
 
 in siicli case he shall ac(juirc such right, title, or interest, and no 
 
 farther or other than was possessed by the factor or agent at the time 
 of the deposit or pledge (a). 
 
 That the Act shall not prevent the true owner of the goods from 
 I'ccovering them from his factor or agent, before a sale, deposit, or 
 ])ledge, or from the assignees of such factor or agent, in the event of 
 his bankruptcy ; nor from the buyer the price of the goods, subject 
 to any right of set-otf on the ])art of the buyer against the factor or 
 agent {b) : nor from recovering the gocds deposited or pledged upon 
 repayment of the money, or restoration of the negotiable instrument 
 advanced on the security thereof to the factor or agent ; and upon 
 payment of such further money or restoration of such other negoti- 
 able instrument (if any) as may have been advanced by the factor or 
 agent to the owner, or on payment of money equal to the amount of 
 snch instrument, nor from recovering from any person any balance 
 remaining in his hands as the produce of the sale of the goods, after 
 deducting the money or negotiable instrument advanced on the 
 security thereof. And that in case of the bankruptcy of the factor 
 or agent, the owner of the goods so pledged and redeemed shall be 
 licld to have discharged, /?/-o tanto, his debt to the estate of the bank- 
 rupt (cj. The following cases have been decided upon the construc- 
 tion of this Act of Parliament. 
 
 In an action of troA'er {d) for forty chests of indigo, it appeared 
 that tlie plaintiffs purchased the indigo of Xevitt and Co. While 
 the warrant continued in the possession of Nevitt and Co., J. Nevitt, 
 a partner in that house, pledged them with the defendants, who 
 afterwards obtained the indigo under them. The question at the 
 trial was, whether the ckfendants, assuming that they had given the 
 necessary consideration for the warrants, were entitled to the protec- 
 tion of the statute. Nevitt and Co. were brokers at Liverpool, and 
 J. Xevitt resided principally in London, and dealt largely in indigo, 
 both as a broker and on his own account. There was some evidence 
 tending each way on the question, whether the defendants had reason 
 to believe that Xevitt held the warrants only as a broker. " The 
 cxprcssion,^^ said Lord Texterdex, " of the statute is, that a pai'ty 
 is to be entitled to its protection, if ' he shall not have notice, by 
 the documents or otherwise,' that the pledger was not the actual and 
 bond Jide owner of the goods pledged. A person may have know- 
 ledge of a fact either by direct communication, or by being aware of 
 circumstances which must lead a reasonable man, applying his mind 
 to them, and judging from them, to the conclusion that the fact is so. 
 Knowledge acquired in either of these ways is enough^ I think, to 
 exclude a party from the benefit of the pro^"isions of this statute ; 
 slight suspicion, I think, will not : the question I shall leave to the 
 jury in this ease, where there is no evidence of direct communication, 
 
 (a) Sect. 5. Sec Fletcher v. Heaili, 7 (6) Barin;) v. Corrie, 2 V>. k Aid. 137. 
 
 B. & C. 517 ; Bktnd'i v. Allan, 3 C. & T. (<•) 6 Geo. 4, c, 'J4, s. 6. 
 
 •117; Tcti/lor v. Trueman, M. & M. 453. (d) Zmns v. Truwutn, 1 Moo. &: l\, IV,
 
 C. OF THE i\\ct(»];k Arrs. 429 
 
 is, Avhetlier the circumstances were siieli as that a reasonable man, and Chap. 10- 
 a man of business, applying his understanding to them, would kno\v 
 tliat the goods were not Nevitt''s?^^ 
 
 In the case of PhUlips v. Huth [e], it was determined, tliat in order 
 to constitute an entntstinff of a document, within the meaning of 
 the Act, it is necessary that the owner should have intended the 
 factor to possess it in that form, at the time when he had the posses- 
 sion of it. In that case, bills of lading for a cargo of tobacco 
 endorsed in blank were entrusted by the owner to a factor for sale. 
 The factor, without the knowledge of the owner, obtained dock war- 
 rants in his own name, which he afterwards pledged as security for 
 moneys advanced to him. The goods having been sold by the lender, 
 his right to retain the amount of his advances was contested by the 
 owners in an action for money had and received. It Avas proved that 
 tobacco was sold sometimes by delivery order, sometimes by warrant, 
 Avhich latter mode, however, is not convenient unless an entire cargo 
 be sold. It was held that the pledges were not protected by the 
 second section of the statute. " It is not enough,^^ said the Court, 
 '^ to show that the plaintiffs empowered the factors to posses them- 
 selves of the warrants whenever they chose, it must be shown that 
 they really intended the factors sho^ild be possessed of them at the 
 time they pledged them, or it must be shown that they meant them 
 not only to have the power the possession of the bill of lading would 
 give, of getting the warrant when they liked, but to exercise it by 
 obtaining it whenever they in their discretion might think fit." 
 
 It has Ijcen determined, also, that the negotiable instruments men- 
 tioned in the second section as a secKr'itij, are such as pass by endorse- 
 ment and delivery, as bills of exchange and promissory notes, and not 
 East India warrants or other documents of that nature (/). 
 
 On the fifth section it has been held, that where a broker accepts 
 bills for his principal, on the security of goods then in his hands, and 
 pledges the goods with a person who has no notice of the agency, and 
 does not inform the principal of the transaction, the broker only 
 transfers such right as he has, Avhich is a right to be indemnified 
 against the bills accepted ; and that the principal having satisfied 
 those bills, has a right to have his goods back from the pawnee 
 without paying the amount for which they were pledged {g) 
 
 Where a bill of lading is thus pledged by the consignee of the 
 goods, as a security for his own debt, the right to stop them in 
 transitu, in case of the consignee's insolvency, is not absolutely 
 defeated, as in the case of a sale of the bill of lading by the consignee. 
 
 {e) 6 Meos. cl- W. 605. It appears from (//) Fletcher v. Heath, 7 B. k C. 517. 
 
 the observations of Ar.DERSOX, U., in the It has been held also, tluit in order to liriiij'- 
 
 case of Phillips v. Huih, that there was a case within this section of the statute, the 
 
 some misconception about the point decided transfer must have been made expressly as 
 
 ill the case of Vlose v. Holmes, 2 M. & Rob. a pledg-e, and that a fraudulent sale was 
 
 22. not within it. Thompson \, Farmer, 
 
 (/) Tai/lor v. Truemau, M. & M. 45.3; M. & M. 1-8. 
 Tatilor \.' Kymer, 3 B. & Ad. 220. See 
 40'& 41 Vict. c. 39, s. 5, a»le. j.. 120,
 
 430 STOPPAGE IX TRANSITU. 
 
 Part IV. The legal riglit to tlie possession of the goods passes to the pledgee; 
 
 but the veiulor may still assert his interest in them, subject to the 
 
 rights of the pledgee, and Avill have a right, at least in equity, to the 
 residue \vhich may remain, after satisfaetion of the pledgee's claim. 
 And if other goods, belonging to the pledger, are pledged along with 
 those represented by the bill of lading, the vendor will be entitled 
 to have the proceeds of the former applied to the discharge of the 
 pledgee's claim before his own goods arc so appropriated. In a 
 case {a) before the Court of King's Bench, it appeared that the plaintift', 
 Westzinthus, shipped at Leghorn twenty-three casks of oil to Lapage 
 . and Co., merchants at Liverpool, in execution of an order trans- 
 mitted by them to him ; and at the same time drew a bill of exchange 
 on them for the amount of the oil. This bill, together with the bill 
 of lading for the oil, was transmitted to certain agents of "\Yest- 
 zinthus Avith instructions to deliver the bill of lading to Lapage and 
 Co., upon their accepting the bill of exchange so drawn on them ; 
 and accordingly, Lapage and Co. accepted the bill of exchangCj and 
 the bill of lading was delivered to them. Lapage and Co., after 
 having pledged the bill of lading with Hardman and Co., as a 
 security for certain advances, became bankrupt, and their acceptance 
 in the plaintiff's favour was dishonoured. At the time of their bank- 
 ruptcy, they owed Hardman and Co. 9,271/. on account of advances, 
 as security for which they held, besides the bill of lading, goods to the 
 value of 9,961/. 1*. 7d., belonging to Lapage and Co. themselves. 
 The Court held, that AVestzinthus, who had, u])on the bankruptcy of 
 Lapage and Co., given notice to the master of the ship that he 
 claimed to stop the oil in transitu, had a right to insist upon the pro- 
 ceeds of the goods of Lapage and Co. being applied to the discharge 
 of the lien of Hardman and Co., and as they proved sufficient to 
 satisfy it, had a right to receive the entire proceeds of the oils. " In 
 this case/'' said Lord Dex.man, delivering the judgment of the Court 
 of King's Bench, '' Westzinthus, who was the unpaid vendor at the 
 time when his agents made the demand on the master of the vessel on 
 board which the oil was, had no right to take possession on the insol- 
 vency of the vendee, Lapage, because the property in, and also the 
 right of the possession of, the goods, was unquestionably vested at 
 the time in Hardman, the endorsee of the bill of lading, for a valuable 
 consideration. The demand, therefore, of "Westzinthus gave him no 
 legal right to the property or possession of the goods ; and it appears 
 to us that he can have no claim at law, except as arising out of the 
 right of retaking the possession of the goods themselves, Avhicli right 
 was determined by the endorsement of the bill of lading. It is not 
 necessary to determine what would have been his situation if either 
 Lapage or himself had paid off Ilarman's demand prior to the notice 
 given to the master, or to the actual receipt of the goods by the 
 vendee. 
 
 («) In the matter of Arbitration between also Spaldinf) v. Sioiiiifl, 6 Beavan, 370; 
 
 Westzinthus and the Assignees of Lapage Benidston v. Strang, 30 L. J. Ch. 879 ; 37 
 
 and Co., and between Rogers and Co., aud L. J. Ch. GOo; L. R. 1 Eij. 481; 3 Ch, 
 
 the same Assignees, 5 B. & Adol. 817. !^ce 588,
 
 G. OF THE FAf'TOT^S ACTS. 431 
 
 " As Wcstzintlms would have had a clear right at law to resume Chap. 10- 
 the possession of the goods on the insolvency of the vendee^ had it " 
 
 not been for the transfer of the property and right of possession by 
 the endorsement of the bill of lading for a valuable consideration to 
 Hardman^ it appears to us that in a court of equity such transfer 
 Avould be treated as a pledge or mortgage only, and Westzinthus 
 would be considered as having resumed his former interest in the 
 goods, subject to that pledge or mortgage, — in analogy to the common 
 case of a mortgage of a real estate, which is considered as a mere 
 security, and the mortgagor as the owner of the land. We therefore 
 think that Wcstzinthus, by his attempted stoppage in transitu, acquired 
 a right to the goods in equity (subject to Hardman^s lien thereon) as 
 against Lapage and his assignees, who are bound by the same equities 
 that Lapage himself was. And this vicAV of the case agrees with the 
 opinion of Buller, J., in his comment on the case of Snee v. Pres- 
 cott, in Lickbarroiv v. Mason, [b) . If, then, Wcstzinthus had an 
 equitable right to the oil, subject to Hardman^s lien thereon, for his 
 debt, he would, by means of his goods, have become a surety to 
 Hardman for Lapage's debt, and Avould then have a clear equity to 
 oblige Hardman to have recourse against Lapage's own goods 
 deposited with him, to pay his debt in case of the surety ; and all 
 the goods, both of Lapage and Wcstzinthus, having been sold, he 
 Avould have a right to insist upon the proceeds of Lapage's goods 
 being appropriated, in the first instance, to the payment of tlie 
 debt." (c). 
 
 The 5 & 6 Vict. e. 39, recites that by G Geo. 4, c. 94, 5&6Vict. 
 " Validity is given, under certain circumstances, to contracts or '"* ^^• 
 agreements made with persons intrusted with and in possession of the 
 documents of title to goods and merchandize, and consignees making- 
 advances to persons abroad Avho arc intrusted with any goods and 
 merchandize are entitled, under certain circumstances, to a lien thereon, 
 but under the said Act and the present state of the law advances 
 cannot safely be made upon goods or documents to persons known to 
 have possession thereof as agents only : and whereas by the said Act 
 it is amongst other things further enacted, ' that it shall be lawful to 
 and for any person to contract with any agent intrusted with any 
 goods, or to whom the same may be consigned, for the purchase of 
 any such goods, and to receive the same of and to pay for the same to 
 such agent, and such contract and payment shall be binding upon and 
 good against the OAvner of such goods, notwithstanding such person 
 shall have notice that the person making such contract, or on Avhose 
 behalf such contract is made, is an agent ; provided such contract or 
 payment be made in the usual and ordinary course of business, and 
 that such person shall not, when such contract is entered into or pay- 
 ment made, have notice that such agent is not authorized to sell the 
 same, or to receive the said purchase money : ' and whereas advances 
 
 (i) 6 East, 29, note. Coventry v. Gladstone, L. R. G Eq. 4i; 37 
 
 (c) See Exp. Alston, L. R. i Cli. 1G8; L. J. Cli. 492.
 
 4oi: STonwriE tn traxsitt. 
 
 Part IV. on the security of goods aud mcrcliaiulize have become an usual and 
 ordinary course of business^ and it is expedient and necessary tliat 
 reasonable and safe facilities should be afforded thereto^ and that tlie 
 same protection and validity should be extended to bond fide advances 
 npon goods and merchandize as by the said recited Acts is given to 
 sales, and that owners intrusting agents with the possession of goods 
 and merchandize, or of documents of title thereto, should in all cases 
 where such owners by the said recited Act or otherwise would be 
 bound by a contract or agreement of sale be in like manner bound by 
 any contract or agrtement of pledge or lien for any advances bond 
 _^V/<? made on the security thereof: and whereas much litigation has 
 arisen on the construction of the said recited Act, and the same does 
 not extend to protect exchanges of securities bond fide made, and so 
 much uncertainty exists in respect thereof, that it is expedient to 
 alter and amend the same, and to extend the provisions thereof, and 
 to put the law on a clear and certain basis : " it then enacts " that 
 from and after the passing of this Act any agent («) who shall there- 
 after be intrusted {b) with the possession of goods, or of the docu- 
 ments of title to goods, shall be deemed and taken to be owner of 
 such goods and documents, so far as to give validity to any contract 
 Bona fde ad- or agreement by way of pledge (c), lien, or security bond fide made 
 viinccs to per- by any i)crson with such agent so intrusted as aforesaid, as well for 
 sons intrusted ^^^^^ original loau, advance, or payment made upon the security of 
 session of ^ such goods or documents, as also for any further or continuing 
 goods, kv., advance in respect thereof, and such contract or agreement shall be 
 tlioiigh known jjindin" upon, aiul good against, the owner of such goods, and all other 
 
 to be agents, • ^ ^ i ?i • i. -^i x v xi i • • i 
 
 vroteeted. persons interested tliereni, notwithstanding the person cLaiming such 
 
 pledge or lien may have had notice that the person Avitli whom such 
 
 contract or agreement is made is only an agent." 
 
 Buna fde H. " Aiid bc it cuacted, that wliei'c any such contract or agreement 
 
 deposits jn ^q^. pigdgg^ lien, or security shall be made in consideration of the 
 
 proteeted ; dclivciy or transfer to such agent of any other goods or merchandize 
 
 or document of title, or negotiable security, upon Avhich the person 
 
 so delivering up the same had at the time a valid and available lien 
 
 and security for or in respect of a previous advance by virtue of some 
 
 contract or agreement made with such agent, such contract and 
 
 agreement, if bond fide on the part of the person Avith whom the same 
 
 (a) This docs not apply to a warehouse- L. R. 4 C. P. 73 ; :38 L. J. C. P. 9.5, a 
 
 man intrusted as such tluiugli he is also a case decidetl before this latter Act. As to 
 
 l)roker. Coh v. yorfh IJ'es/ern Banl; the Factors Acts applying where the vendor 
 
 Z/w., 43 L. J. C. P. 194; L. K. 9 C. P. or vendee of goods is in possession of the 
 
 470; li. K. 10 C. P. 354. i<w Jfei/man v. documents of title thereto. See sects. 3 and 
 
 Flewker, 13 C. 15. (x.^.) 519 ; Lamh v. 4 of this Act. Johnson v. Credit Li/onaix, 
 
 Atlenhorouqh, 1 B. & S. 831. Johnson v. Blumenthal, 47 L. J." C. P. 
 
 (i) As to the Act applying where agent 241; I.. K. 2 C. P. I). 224; 3 C. P. 1). 32. 
 
 intrusted through his i'rand, see Sheppard (c) Query wliether there can be a pledge 
 
 v. L'nlon Bank oj London, 31 L. J. Ex. within tLis Act without a delivery of the 
 
 154. As to revocation of intrustment or goods, or of the docunients of titk^ to the 
 
 aii-enev not affecting iiffhts of purchasers, rame. Cole v. Xoi-th Western Bank, Lirn., 
 
 &c., see 40 & 41 A'ict. c. 39, s. 2 in App. yttprct ; Port nils v. Tettey, 37 L. J. Ch. 139 ; 
 
 pee Fvenies v. Montis, L. K. 3 C. P. 268; 1.. K. 5 Eq. 140.
 
 OP THE FACTORS ACTS. 433 
 
 may be made^ shall bo deemed to be a contract made in consideration Chap. 10 
 
 of an advance within tlie true intent and meaning of this Act, and 
 
 shall be as valid and effectual, to all intents and purposes, and to the 
 same extent, as if the consideration for the same had been a bond fide 
 present advance of money : provided always, that the lien acquired '^ut no Hen 
 under such last-mentioned contract or agreement upon the goods or •beyond the 
 
 -, , .,. , 111 11 1 1 value or the 
 
 documents deposited m exchange shali not exceed the value at the o-oods o-iveu 
 time of the goods and merchandize which, or the documents of title up. 
 to which, or the negotiable security which shall be delivered up and 
 exchanged." 
 
 III. ^'^ Provided always, and be it enacted, that this Act and every ^^^'^ the 
 
 matter and thing herein contained, shall be deemed and construed to statute to be 
 
 . , . ° ' , construed to 
 
 give validity to such contracts and agreements only, and to protect protect only 
 
 only such loans, advances, and exchanges, as shall be made bond fide, transactions 
 and without notice thijt the agent making such contracts or agree- ^^'A''-^^^^^ ,. , 
 ments as aforesaid has not authority to make the same, or is acting that the 
 maid fide in respect thereof against the owner of such goods and agent pleJg- 
 merchandize ; and nothing herein contained shall be construed to "\^ ''* acting 
 extend to or protect any lien or pledge for or in respect of any ante- thority, or " 
 cedent {d) debt, owing from any agent to any person with or to whom mala fide 
 such lien or pledge shall be given, nor to authorize any agent in- against the 
 trusted as aforesaid in deviating from any express orders or authority """"• 
 received from the owner ; but that, for the purpose and to the intent 
 of protecting all such bond fide loans, advances, and exchanges as 
 aforesaid (though made with notice (e) of such agent not being the 
 owner, but without any notice of the agent^s acting without authority) , 
 and to no further or other intent or purpose, such contract or agree- 
 ment as aforesaid shall be binding on the owner and all other persons 
 interested in such goods." 
 
 IV. " And be it enacted that any bill of lading, India warrant, dock Meaning of 
 
 warrant, warehouse-keeper's certificate, warrant, or order for the *^^""i " ''?"^' 
 IT /> 1 1 1 i-ji T ment and 
 
 delivery oi goods, or any other document used m the ordinary course title;" 
 
 of business as proof of the possession or control of goods, or authoriz- 
 ing or purporting to authorize, cither by endorsement or by delivery, 
 the possessor of such document to transfer or receive goods thereby 
 represented, shall be deemed and taken to be a document of title 
 within the meaning of this Act ; and any agent intrusted as aforesaid, ^"^^ ^^''^^" 
 and possessed of any such document of title, whether derived imme- i^iftvusted • 
 diatcly from the owner of such goods, or obtained by reason of such 
 agent's having been intrusted with the possession of the goods, or of 
 any other document of title thereto, shall be deemed and taken to 
 have been intrusted with the possession of the goods represented by 
 such document of title as aforesaid, and all contracts pledging or giv- 
 ing a lien upon such document of title as aforesaid shall be deemed 
 and taken to be respectively pledges of and liens upon the goods to 
 
 (d) See Ilacnee v. Gorsf, L. R. 4 Eq. (e) Viclcers v. Hertz, L. R. 2 Sc. App. 
 
 313. Jevan v. Whitworth, L. \\. 2 Eq. \\^ ; NavaJsliaiv\.BrowHrigg,\^\xa.{jfi.s.) 
 G92. 573.
 
 434 
 
 ■sTOP]'AOE TX TRANSTTT' 
 
 Part IV. 
 
 and when in 
 possession. 
 
 \Miat to be 
 tleenied a 
 " contract," 
 Ac. 
 
 Possession 
 prima facie 
 evidence of 
 intrusting. 
 
 Agent's civil 
 responsibility 
 not to be 
 dimiiiislied. 
 
 Agent niakins 
 consignments 
 contrary to 
 instruction of 
 principal 
 guilty of mis- 
 demeanor. 
 
 Right of 
 owner to 
 redeem ; 
 
 or to recover 
 balance of 
 proceeds. 
 
 which the samp relatc!> ; and such agent shall be deemecT to be pos- 
 sessed of sucli ^'.oods or documents, whether the same shall be in his 
 actual ciistody, or shall be held by any other person subject to his 
 control or for him or on his behalf; and where any loan or advance 
 shall be bond fide made to any agent intrusted with and in possession 
 of any such goods or documents of title as aforesaid, on the faith of 
 any contract or agreement in writing to consign, deposit, transfer, or 
 deliver such goods oi* documents of title as aforesaid, and such goods 
 or documents of title shall actually be received by the person making 
 such loan or advance, without notice that such agent was not 
 authorized to make such pledge or security, every such loan or advance 
 shall be deemed and taken to be a loan or advance on the security of 
 such goods or documents of title within the meaning of this Act, 
 though such goods or docitments of title shall not actually be received 
 by the person making such loan or advance till the period subsequent 
 thereto ; and any contract or agreement, w hether made direct with 
 such agent as aforesaid, or with any clerk or other person on his 
 behalf, shall be deemed a contract or agreement with such agent ; 
 and any payment made, Avhether by money or bills of exchange, or 
 other negotiable security, shall be deemed and taken to be an advance 
 Avithin the meaning of this Act ; and an agent in possession as afore- 
 said of such goods or documents shall be taken, for the purposes of 
 this Act; to have been intrusted therewith by the owner thereof, 
 unless the contrary can be shown in evidence/^ 
 
 V. '^ Provided always, and be it enacted, that nothing herein con- 
 tained shall lessen^ vary, alter, or affect the civil responsibility of an 
 agent for any breach of duty or contract, or non-fulfilment of his 
 orders or authority in respect of any such contract, agreement, lien, 
 or pledge as aforesaid. ^^ 
 
 YI. The 6th section of this Act, W'hich contained provisions for 
 the punishment of a factor acting in certain cases maid fide with- 
 out the authority of his principal, is repealed by 24 & 25 Vict, 
 c. 95, and other enactments have been made in lieu thereof (see 
 24 & 25 Yict. c. 9G, ss. 78, 79, noticed in 2 Kuss. on Crimes, bv 
 Prentice, p. 393) . 
 
 VII. " Provided also, and be it enacted, that nothing herein con- 
 tained shall prevent such owner as aforesaid from having the right to 
 redeem such goods or documents of title pledged as aforesaid, at any 
 time before such goods shall have been sold, upon repayment of the 
 amount of the lien thereon or restoration of the securities in respect 
 of which such lien may exist, and upon payment or satisfaction to 
 such agent, if by him required, of any sum of money for or in respect 
 of which such agent would by law be entitled to retain the same 
 goods or documents, or any of them, by way of lien as against such 
 owner, or to prevent the said owner from recovering of and from such 
 person with whom any such goods or documents may have been 
 pledged, or who shall have any such lien thereon as aforesaid, any 
 balance or sum of money remaining in his hands as the produce of 
 the sale of such goods, after deducting the amount of the lien of 
 such person under such contract or agreement as aforesaid : provided
 
 OP THE FACTOES ACTS. 435 
 
 always^ tliat in case of the bankruptcy of any such agent the owner Chap. 10. 
 
 of the goods Avhicli shall have been so redeemed by such owner as 
 
 aforesaid shall^ in respect of the sum paid by him on account of such ijankrup^cv 
 agent for such redemption^ be held to have paid such sum for the use owner to 
 of such agent before his bankruptcy, or in case the goods shall not be pi'ove for 
 so redeemed the owner shall be deemed a creditor of such agent for ^^^^l^^"^* 
 
 DtllCl to 
 
 the value of the goods so pledged at the time of the pledge, and shall, redeem, or 
 if he shall think fit, be entitled in either ol: such cases to prove for value of 
 for or set off the sum so paid, or the value of such goods, as the «°"<^S' ^^ ""• 
 
 , ,, '■ ^ r> } redeemed. 
 
 case may be. 
 
 YIII. " And be it enacted, that in construing this Act the word interpretation 
 ' person ' shall be taken to designate a body corporate or company as °^ •^^'•• 
 Avell as an individual ; and that words in the singular number shall, 
 Avhen necessary to give effect to the intention of the said Act, import 
 also the plural, and vice versa ; and words used in the masculine 
 gender shall, when required, be taken to apply to a female as well as 
 a male." 
 
 IX. ^'Provided also, and be it enacted, that nothing herein con- Not to affect 
 tained shall be construed to aive validity to or in anywise to affect any »">' <"oiitract 
 contract, agreement, lien, pledge, or other act, matter, or thing made i\^q passino- of 
 or done before the passing of this Act.^' tliis Act. 
 
 2 F 2
 
 436 
 
 Part IV. 
 
 DISSOLUTION OF CONTEACTS. 
 
 CHAPTER XI. 
 
 OF THE DISSOLUTION OF CONTRACTS FOR THE CARRIAGE OF GOODS 
 IN MERCHANT SHIPS j AND HEREIN, 
 
 Sects. 1. Of Bissohdion hy Mutual Consent, p. 436. 
 
 2. By events rendering tlie performance of the Contract illegal; — of War and 
 
 Emlargoes, p. 437. 
 
 3. Of Blockade of the Port of Departure, 1x4^1. 
 
 4. Of Blockade of the Port of Destination, p. 442. 
 
 5. Becent Decisivns, p. 448. 
 
 [Having thus considered the several species of contract made for 
 the carriage of goods in merchant ships^ and the various duties aris- 
 ing therefrom, I pi'occed in the last place to the examination of the 
 modes by which contracts of this nature may be dissolved. And these 
 are, either the voluntary act of the contracting parties, or some 
 extrinsic matter, happening after the making of the contract and 
 before its completion.] 
 
 1. Of Dissolution by Mutual Consent. 
 
 [It is a general rule that whatever derives its force and validity 
 from the consent of parties, may by the mutual consent of the same 
 parties be rendered null and invalid.] There was, indeed, before the 
 Judicature Acts, a technical rule of the law of England, which 
 required the discharge of a person from a contract to be made by an 
 instrument of as high a nature as the original instrument of contract; 
 and this rule was applicable to the contract of affreighment by 
 charter-party under seal. By these Acts this technical rule is 
 practically done away with. (See ante, p. 176) ; Preface to this Ed. 
 
 [But a merchant, who has laden goods, cannot insist upon having 
 them re-landed and delivered to him witliout paying the freight that 
 might become due for the carriage of them, and indemnifying the 
 master against the consequences of any bill of lading signed by 
 him (a) . Indeed, a master who has signed bills of lading cannot] 
 
 (a) [2Eq.Ca.Ab.p. 98,Anon.] Thompson Tindall v. Taylor, 4 E. & B. 219. "We 
 V. Trail, 2 Can-. & P. 334, ante, p. 233; and entirely agree," said Lord Cajii'Bell (de-
 
 WHERE PERFORMANCE BECOMES ILLEGAL. 
 
 437 
 
 [with prudence deliver back the goods witliout liaviiig all the parts of Chap. 11. 
 the bill of lading delivered up to him ; for if any one part has been 
 transmitted to a third person^ such third person may have acquired 
 an interest in the goods.] 
 
 2. By events rendering the performance of the Contract illegal ;— 
 of War and Embargoes. 
 
 [Another general rule of law furnishes a dissolution of these con- 
 tracts, by matter extrinsic. If an agreement be made to do an act 
 lawful at the time of such agreement, but afterwards, and before the 
 performance of the act, the perfoimance be rendered unlawful by the 
 government of the country, the agreement is absolutely dissolved {b) . 
 If, therefore, before the commencement of a voyage, w^ar or hostilities 
 should take place between the state to which the ship or cargo belongs, 
 and that to which they are destined, or commerce lietween them be] 
 
 livci'ing judgiuont iu this latter case, and 
 adverting to this passage), "in tlie law laid 
 down by Lord Tenterden in liis treatise, 
 and in Thompson v. Trail, when applied to 
 a general sbiji. By the usage of trade, the 
 merchant, if he re-demands the goods in a 
 reasonable time before the ship sails, is enti- 
 tled to have them delivered to him on pay- 
 ing the freight that might become due for 
 the carriage of them, and on indemnifying 
 the master against the consignees of any bills 
 of lading he may have signed for them ; but 
 these are conditions to be performed before 
 the original contract can be affected by the 
 demand of the goods. It would be most 
 unjust to the owners and master of the 
 ship if we were to hold that upon a simple 
 demand, at any time, the goods must be 
 delivei'cd back in the port of outfit." — By 
 the Code de Commerce, in such a case, art. 
 291, the merchant is enabled to reclaim his 
 goods on payment of half of the freight to 
 become due upon them, the expense of 
 loading and unloading them, of unloading 
 such other goods as are displaced on account 
 of their removal, and of the delay which it 
 occasions. If the ship be not a general ship, 
 but chartered in whole or iu part to carry 
 the merchant's goods, and sail at a fixed 
 time, he caimot withdraw them without 
 paying the whole freight. " La difference," 
 says Rogron, " vient de ce que dans Vaffrcte- 
 ment pur et simple, les engagements sent 
 fails cie part et d'autre saii^ aucune restric- 
 tion, le capitaine a fixe son depart pour tel 
 jour et a dii compter sur ce jour. Au con- 
 
 traire, dans Vaffretement a citeilletle, les 
 engagements du capitaine ne sont que con- 
 ditionnels ; il n'a 2'>as fixe iin jour pour son 
 depart, mais seulemcnt I'epoque ou son 
 chargement sera complet. Si Vaffreleur 
 lui retire ses marchandises il en sera quitfe 
 2}0ur attendrc un peti plus long temps afin 
 de completer ce chargement ; d'ailleurs on 
 a voulu ojfrir au chargeur Tine espece de 
 compensation de ce que dans cet ajfretement 
 le capitaine a le droit de rompre le voyage 
 si son chargement est incomjjlet." — Mr, 
 Justice Shee. 
 
 (b) The Hoop, 1 Rob., A. R. 196. Tolls 
 V. Bill, 8 Term Rep. 5-48. Esposilo v. 
 Bowden, 7 E. & B. 763, 27 L. J. Q. B. 17, 
 post, p. 150, where Mr. Justice Willes said, 
 in delivering the judgment of the Court, 
 " One of the consequences of war is the 
 absolute interdiction of all commercial 
 intercourse or correspondence between the 
 subjects of the hostile countries, except by 
 the permission of their respective sove- 
 reigns. The cases of the Hoop and Potts v. 
 Bell further establish that it is illegal for 
 a subject in time of war, without license, 
 to bring from the enemy's port, even in a 
 neutral ship, goods purchased in the 
 enemy's country, after the commencement 
 of hostilities, although not appearing to 
 have b;.'en purchased from an enemy; in 
 effect, that trading with the inhabitants of 
 an enemy's country is trading with the 
 enemy. Evans v. Hutton, 6 Jurist, 1012. 
 Duncan v. Koster, 41 L. J. Ad. 57.
 
 438 
 
 DISSOLUTION OF COXTEACTS. 
 
 Part IV. [wholly proliibitcd, the contract for conveyance is at an end (a), the 
 merchant must unlade his goods^ and the owners find another employ- 
 ment for their ship. And probably the same principles would apply 
 to the same events happening after the commencement and before the 
 completion of the voyage^ although a different rule is laid down in 
 this case by the French ordinance (b), as I have before observed. 
 But if war or hostilities break out between the place^ to which the 
 ship or cargo belongs^ and any other nation^ to Avhicli they are not 
 destined: although the performance of the contract is thereby rendered 
 more hazardous, yet is not the contract itself dissolved_, and each of 
 the parties must submit to the extraordinary peril, unless they mutually 
 agree to abandon the adventure. 
 
 So, if the government of the country, to which the ship and cargo 
 belong, should prohibit the exportation of the particular commodities 
 that compose the cargo, or by the terms of the contract are destined 
 to compose it (as is sometimes done by all states Avith regard to pro- 
 visions, in a time of scarcity), in this case also it seems that the law of 
 the country would give no damages to the owner against a merchant 
 who had been thus compelled by the laAV of the same country to 
 abandon his engagement (c), but the contract Avould be dissolved on 
 both sides. On the other hand, if 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 {d) ; for 
 the laws of one nation do not give effect to the positive institutions of 
 another inconsistent with its own; and the different interests of 
 nations sometimes render an act meritorious in one, which is pro- 
 hibited by another in alliance with it, if the act be not contrary to] 
 
 (a) [FmicliOrdin. llv. 3, tit. l.des Cliavte- 
 parties, art. 7 ; Code de Com. art. 276.] In 
 respect of the question, who are to be con- 
 sidered enemies or not, the general prin- 
 ciple is, that every person is to be considered 
 as belonging to thecoimtrviu which he has 
 Ins domicile, whatever may be his native or 
 adopted country. Stoey on Prize Courts, 
 p. 59. The Vigilant la, 1 Kub. 1. The 
 Endravghf, 1 Eob. 19. The Sarah Ch'-ls- 
 Una, 1 Wuh. 237. The Indian Chief, 3 
 Eob. 23. The President, 5 Eob. 277. The 
 yeptiinw, 6 Rob. 413. McConnel v. 
 Mu-ior, 3 ]5os. & Pull. 113. Bynk. Q. J. 
 Priv. ch. 3. If a person goes into a bel- 
 ligerent country originally for temporary 
 purposes, he will not preserve his neutral 
 character if he remain there several years, 
 paving taxes, &c. The Harmony, 2 Rob. 
 322. The Umlden, 1 Rob. 17. And a 
 neutral consul resident and trading iu a 
 belligerent country is, as to his mercantile 
 character, deemed a belligerent of that 
 country. The Indian Chief, 3 Rob. 22; 
 the Josephine, 4 Rob. 25. And the same 
 rule applies to the subject of one l)elligerent 
 
 country resident in the country of its 
 enemv, and carrvinij on trade there. The 
 Cltto, 3 Rob. 38*; 3"Bos. & Pull. 113. But 
 the native character easily reverts, as by a 
 person jiutting himself In itinere, to return 
 to his native country, animo revertendi. 
 The Indian Chief 3 Hoh. 22. La Verginie, 
 5, Rob. 98, It is a fundamental principle 
 of prize law that all trade with the enemy 
 is prohibited to all persons, whether natives, 
 naturalized citizens, or foreigners domi- 
 ciled in the country, during the time of 
 their residence, under the penalty of con- 
 fiscation. Stoey on Prize, p. 69. The 
 Tlgilaniia, 1 Rob. 1, 14. The Hoop, 1 
 Rob. 196. Potts v. Bell, 8 Term Rep. 548. 
 — Mr. Justice Shee. See ante, 437, note (6). 
 
 (i) [Liv. 3, tit. 3, Fret, art. 15. Sec 
 before. Part IV, Chap. 9, sect. 5, and the 
 Code de Com. art. 299.] 
 
 (c) [Bv Lord ELXEicBOEorGH, in Barlcr 
 v. Hodgson, 3 M. & S. 267.] 
 
 {d) IBlightx. Page, GmmvdW Sift, after 
 Mich. Term, 1801, before Lord Kexyox, 
 Ch. J., cited 3 Bos. & Pull. 295, note {a), 
 and see SJoerds v. Liiscombe, 16 East, 201.] 
 
 I
 
 2. WIIEKE rEUFOFiMANCE DEOOME.s ILLEGAL. 439 
 
 [the general law of nations;, or to existing treaties; lAid the common Chap. 11. 
 exception of the restraint of princes and rnlers applies only to tlic 
 case of the master (e). Bnt in sueli a case^ or if the default be 
 owing to tlie personal neglect or inability of the freighter, and not 
 to any general cause, the master, upon his arrival at the port of 
 lading, should obtain another cargo, if possible, from other persons, 
 and not sullenlj' hoist sail and depart, in order to charge the 
 merchant with the Avhole freight. And if upon the ship's ari-ival he 
 is informed that the mereliant is unable to furnish the lading, he 
 cannot, by waiting the time appointed in the charter-party, charge 
 the merchant Avith the demurrage (/). It has also been held, that a 
 contract was not dissolved, nor a merchant excused, for the non- 
 performance of his covenant, by a prohibition of intercourse on 
 account of an infectious disease {(/) . 
 
 Eut although contracts of this nature are dissolved by the breaking 
 out of war or hostilities in the manner before mentioned, of Avhich no 
 person can forsce the termination ; yet they are not dissolved by an 
 embargo, or temporary restraint of their performance imposed by the 
 government of the country in whose ports the vessel may happen to 
 be, as a measure of political caution in time of war, or upon the 
 expectation of it, either in the lading port, or in a place at Avhicli the 
 sliip may have touched in the course of her voyage (h) . This subject 
 has received a judicial termination in the law of England. The 
 case (i) was as follow^s : — Hadley, the plaintitt", brought an action 
 against Clarke and Others, owners of the ship Pomona, for not carry- 
 ing to Leghorn goods put on board the Pomona, at Liverpool, to be 
 conveyed to Leghorn, the danger of the seas only excepted. The 
 plaintiff had paid 2137/. 1H.S'. for insurance of the goods for the voyage. 
 The ship sailed from Liverpool, and in pursuance of permission given 
 for that purpose, put into Falmouth on the 30tli of June, 1796, to 
 wait for convoy. While she waited there for that purpose, an embargo 
 was, by order of the King in Council, dated 37th of July, 1796, laid 
 on all ships bound to Leghorn, being one of the ports in the terri- 
 tories of the Grand Duke of Tuscany, then in possession of the 
 French. This embargo was directed to continue until further order 
 of the board of Privy Council. On the 23rd of August following 
 another order of Council issued, allowing vessels in the situation of 
 the ^Pomona to return to their ports of lading, and land and Avare- 
 honse their cargoes there vmder certain regulations. In the month of 
 August, 1798, and not before, the Pomona left Falmouth, without 
 the consent of the plaintiif, and returned to Liverpool, where after 
 some dispute the phiintiff received the goods without prejudice to the 
 question, whether under the circumstances the defendants were 
 excused for the non-performance of their contract. On the 24th of] 
 
 (e) \_Bll(jhl y.Parje; and sec Tuuleiiij V, Cluirto-pai'tics, art. 8, and sec liv. 3, tit. 3, 
 
 Hubbard, 3 Bos. & rulL 298. 1 Fret, art. 16 ; Pothier, Chartc-partic, num. 
 
 (/) IBUr/hf V. Paye, >iupm:\ lOU.J 
 
 (9) ^Barker v. Rodgnoti, 3 1\[. & S. 267.] (0 IHadleij v. Clarice, 8 Term Kep. K.B. 
 
 (k) [French Ordiu. liv. 3, tit. 1; Dcs 259.]
 
 440 DISSOLUTION OF CONTEACTS. 
 
 Part IV. [October^ 1798, the embargo -n-ns taken off. At tlie trial of the cause 
 the plaintiff obtained tlie verdict of a jury for the amount of the 
 charges of insurance. The right of tlie plaintiff to recover was after- 
 wards solemnly discussed in the Court of King's Bench; and the 
 court was of opinion that the embargo did not dissolve the contract, 
 being only a temporary restraint, and that the plaintiff had a right to 
 recover. Before the commencement of the transaction between the 
 parties, all intercourse with countries under the government of the 
 Frencli, during the then existence of hostilities between France and 
 this country, had been prohibited by Act of Parliament («); but this 
 prohibition Avas also held to be only temporary Avith respect to 
 Leghorn, and consequently not to alter the case. 
 
 In the case of an embargo, the French oi'dinance expressly autho- 
 rizes the merchant to unlade the goods at his OAvn expense, if he 
 thinks fit, ujDon the condition to relade them or indemnify the 
 master {b) ; and Yalin (c) and Potliier {(I) declare it to be their 
 opinion, that if the goods are of such a sort that they will not keep 
 during the period of the embargo, and cannot at its expiration be 
 readily rej^laced by others of the like kind, the embargo will put an 
 end to the contract. In such a case, whatever the rule of laAv may 
 he, the interest of all parties Avill in general induce them to annul the 
 contract upon reasonable terms. 
 
 But in the case of an embargo imposed by the government of the 
 country of which the merchant is a subject, in the nature of I'eprisals 
 and partial hostility against the countr}^ to Avhicli the ship belongs, 
 the merchant may put an end to the contract, if the object of the 
 voyage is likely to be defeated by the delay. Thus in the ease of a 
 Swedish sliip, chartered by a British merchant to go from London to 
 St. Michaers for a cargo of fruit, Avhich, haA'ing sailed on the voyage, 
 Avas driven Ijack by contrary Avinds and forced into Ramsgate harbour, 
 and there stopped, on the loth of January, 1801, by the embargo 
 imposed by the British government on all Swedish vessels ; upon 
 A\ Inch the merchant applied to the captain to give back liis letters of 
 adAice, Avho declined to do so, and Avho, soon after the embargo Avas 
 taken oft', which happened in the foUoAving June, offered to proceed 
 on the voyage, Inxt Avas directed by the merchant not to do so, because 
 the season for shipping fruit was then passed : the Court of Common 
 Pleas held that the master could not maintain an action against the 
 merchant for the non-performance of the contract (e). For otherwise 
 a British subject would sustain the evils that the government of his 
 country intended to inflict on foreigners ; which is contrary to the 
 principle now established in the laAV of insurance, viz., that the in- 
 surer is not ansAverablc for a loss happening to an enemy by British 
 capture in a course of hostilities, Avhether existing at the time of 
 insurance, or taking place afterAvards {/) .] 
 
 (a) [33 Goo. 3, c. 27, s. 3.] 291.] Jackson v. Union, ^-c, Co. Limited 
 
 (b) [Liv. 3, tit. 1, Charte-partle, art. 9.] 44 L. J. C. P. 27. 
 
 (c) [Tom. 1, p. 628.1 (/) [Furhido v. Eodgers, 3 Eos. &. Pull. 
 . (d) [Chai-te-i)artie, muu. 102.] 191, and Eellner v. Le Mesurier. Gamba 
 
 (e) iToidtn^ V. liubbard, l^ Bos.it Pul) v, Mcmri.er, and Brandon v. Curlinff, all
 
 3. BLOCKADE OF POET OF DEPARTURE. 441 
 
 [In tlie case of aiiotlicr Swedish vessel stopped under the same Chap. 11. 
 embargo, Avith a British cargo oi* fish on hoard, the cargo was taken 
 out and restored ; and upon the restoration of the ship the learned 
 Judge of the Court of Admiralty held the merchant not to he liable 
 to the freight, as I have mentioned before (^).J 
 
 3. Of Blockade of the Port of Departure. 
 
 The effect upon subsisting contracts, of blockade of the port of 
 departure, does not appear to have been directly decided in our courts; 
 but after much discussion in the courts of America, it has been con- 
 sidered, on the principles established in the cases above cited, not to 
 dissolve a contract of affreightment, but merely to operate as a tem- 
 porary suspension of its performance. 
 
 "Tliis,^' says Chancellor Kent (A), "was the decision in the case 
 of Palmer v. Lorillard (i), by the Court of Errors, of New York, in 
 which the doctrine was extensively examined ; and it was shown by 
 a reference to the foreign ordinances and the soundest classical writers 
 on maritime law (A:), that the master, in the case of such an invincible 
 obstacle of a temporary nature to the prosecution of the voyage, is 
 entitled to wait for the removal of it, so that he may earn his freight, 
 unless the cargo consists of perishable articles which cannot endure 
 the delay. He stands upon a principle of equity which pervades the 
 maritime laAV of Europe, if he refuses to surrender the cargo to the 
 shipper without some equitable allowance in the shape of freight for 
 his intermediate service.^' 
 
 Judge Story, however, says, that the question whether the master 
 is entitled to retain the cargo until a compensation in lieu of freight 
 be made to him, or be left to his remedy against the merchant by an 
 action on the case, is still open to discussion. 
 
 When a blockade has been publicly notified to the government of a 
 country, parties in that country entering into contracts after such 
 notification must be taken to have knowledge of its existence (/) ; 
 and although such a notification does not, propria vigore, bind the 
 subjects of any state but that to which it is addressed, yet in a 
 reasonable time it will affect neighbouring states with knowledge as a 
 reasonable ground of evidence. Accordingly, where a A^essel belong- 
 ing to Bremen was captured on her voyage outward from Amsterdam, 
 then in a state of blockade, and it was pleaded in her behalf that the 
 
 three decided ill the Court of King's Bench art. 15, and Charte-pnrtie, art. 8; Valin, 
 
 in Mich. Term, 1803, and reported 4 East, p. 1; Pothier, Cliarte-i^artie, nnius Gd] 
 
 396,407,410.] 100, 101; Laws of Oleron, art. 4; 'Con- 
 
 {[)) [The Isabella Jacohina, 4 Rob. Ad. solat. par Bouclier, chaps. 80, 82, 84 ; 
 
 Rep. 77.] Roccus, de Nav. p. 54; Jacobsou's Sea 
 
 (/() Com. Edinburgh edit. p. 216. Laws, by Freck. 
 
 (?) 16 Johns. Rep. 348. Hqc Adamsoiiv. (I) Medeiros v. Hi//, 8 Ring. Rep. 231. 
 
 Newcastle, cfr., Ins. Ass., post, p. 450. Naylor v. Taylor. 9 B. & C. 718. Harriett 
 
 {k) Ordin. de hi Mar, liv. 3, tit. 3, Fret, v. Wise, 9 B. & C. 712.
 
 442 DISSOLUTION OF CONTRACTS. 
 
 Part IV. blockade existed de faclo only, and tliat no uotifieatioii of it had been 
 made to the llanse Towns, Lord Stowell (a) condemned the ship, 
 and said, "At Amsterdam it must have been a subject of general 
 notoriety that the port Avas legally considered by the English in a 
 state of blockade ; and it is impossible that it should not have come 
 to the knoAvledge of this Bremen man. It is not to be said by any 
 person, ' although I know a blockade exists, yet because it has not 
 been notified to my court I -will take out a cargo.^ If it was known 
 to every Dane and Swede, it is impossible that it should not be known 
 to this man. It is not more likely to liave been unknown to this 
 vessel, from the circumstances of its being a Bremen ship, when we 
 consider the particular relation which Bremen bears to the sovereign 
 of this country.''' 
 
 The general rule is, that by egress a blockade may be held to have 
 been broken without proof of notice ; those within a blockaded port 
 are presumed to be necessarily apprised of the fact, but persons enter- 
 ing a place under blockade de facto only, are entitled to warning, 
 although not excused {b), if affected with knowledge of the fact. 
 Vessels which have gone into a blockaded port before the blockade, 
 may he at liberty to retire, but not to carry out a cargo unless one 
 carried in by them before the blockade, for the object of the blockade 
 is to cut oft" all communication of commerce with the blockaded port. 
 A ship coming out of it, is in the first instance liable to seizure, and 
 the claimant to obtain release must give very satisfactory proof of the 
 innoeeney of his intention (r). 
 
 A ship originally neutral, upon which no suspicion of enemy's 
 property can attach, may be transferred by one neutral to another in 
 a blockaded port {d), but it is otherwise with a ship which was the 
 property of the enemy at the commencement of the war ; and that 
 tact, without clear proof of the contrary, will be presumed against a 
 ship coming out of a port under blockade [e) . 
 
 4. Of Blockade of the Port of Destination. 
 
 With respect to blockade of the port of destination, it has been 
 decided by the Supreme Court of New York, that it operates a 
 complete dissolution of the contract (/). That decision proceeded 
 on the broad ground, that what has become unlawful by the general 
 law of nations, cannot be lawfully done by the subjects of any 
 particular state. The cpiestion does not appear to have directly 
 arisen in our courts of common law, but the general principle has 
 
 {(() The Adelaide, 2 Rob. Ad. Kep. 111. {d) The Potsdam, 4' Rob. Ad. Rep. 89. 
 
 The Tutela, G Rob. Ad. Rep. 177. {(■) The J'iffilanfla, 6 Rob. Ad. 122. The 
 
 (J) Tlie Vrouio Judith, 1 Rob. 150. The General Hamilton, 6 Rob. Ad. 61. 
 Tutela, 6 Rob. 177. The Jiiffrouw Maria, (/) Scott v. Lv.bbi/, 2 Johns. Rep. 336. 
 
 3 Rob. U7. 
 
 (f) The Frederick, 1 Rob. 86. Cremidl 
 V. Powell, 11 Moore P. G. C. 88.
 
 4. BLOCKADE OF TORT OF DESTINATION. 443 
 
 been acted upon by Lord Stowell ((/), and was assumed by the Chap. 11. 
 
 courts of King's Bench and Common Pleas in the eases which will be 
 
 presently cited. 
 
 But to produce this effect it must be a real and effective — not a 
 nominal or relaxed blockade (h). 
 
 "A blockade/' said Lord Stowell, ^^may be more or less rigorous, 
 either for the single purpose of watching the military operations of 
 the enemy and preventiug 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, Avhich is strictly and properly a blockade, for the 
 other is in truth no blockade at all, so far as neutrals are concerned. 
 It is an undoubted right of belligerents 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 construc- 
 tion. 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 ~\vas a blockade actually existing at the time so as 
 to bind the vessel" (i). 
 
 When a blockading squadron is driven off by adverse Avinds, 
 neutrals are bound to presume it Mill return, but not so if driven off 
 by a superior force (k). And though the object of the blockade is to 
 prevent all commerce Avith the j)lace blockaded, it will not operate 
 beyond the limits within Avhicli the blockading force has the means of 
 making it effectual. Thus, the blockade of Amsterdam Avas held not 
 to be violated by shipments to Embden Avitli an ulterior destination 
 by land to Amsterdam, AA'hich the blockading squadron had no poAver 
 of preventing (/) . 
 
 There must also, to render the voyage illegal, be a premeditated 
 intention to break the blockade. If it be part of the original inten- 
 tion to inquire as to the continuation of the blockade at some port of 
 the blockading country, a vessel may laAvfully clear out for a block- 
 aded port (m) . 
 
 In the ease of Medelros v. Hill (n), AvhiehAvas an action of assumpsit 
 against a shipoAvner for not proceeding to Terceira pursuant to charter- 
 party, the defence was, first, that at the time the charter-party Avas 
 entered into, Terceira was in a state of blockade b}^ the government 
 of Portugal, which blockade had been notified to the English govern- 
 ment, and consequently that the voyage Avas an illegal voyage ; and, 
 secondly, that although the voyage might not be, strictly speaking, 
 
 iff) The Tiiteta, 6 Rob. Ad. Eep. 177. ("0 The Columbia, 1 Rob. 154. 'i'lio 
 
 {h) Tlie NeptuiHis, 2 Kob. Ad. Rep. 110. Shepherdess, 5 Rob. 262. The Neptumis, 
 
 The Adelaide, ibid. 111. 2 Rob. Ad. Rep. 110. Naylor v. Tai/lor, 
 
 {I) The Juffruuw Maria, 3 Rob. Ad. 9 B. & C. 719. The Rolla, 6 Rob. 364. 
 
 Rep. 147. Dalgleish \. Hodgson, 7 Ring. 495. 
 
 {k) The Hoffnung, 6 Rol). 112. («) 8 Biii^. Rep. 231. 
 
 (0 The Triheten, 6 Rob. Ad. Rep. 65. 
 The Ocean, Rob. Ad. Rep. 297.
 
 444 DISSOLUTION OF CONTRACTS. 
 
 Part IV. i\]c%n\ [a], tlic circumstances of the blockade operated as an excuse 
 for the non-performance of the contract. 
 
 Upon these points Chief Justice Tixdal, delivering the judgment of 
 the Court of Common Pleas^ observed, '^ The case of the Neptunus {b), 
 ■which was cited in support of the first objection, establishes, that it is 
 illegal to attempt to enter a blockaded port in violation of the blockade, 
 and that after notification of the blockade, the act of sailing to a 
 blockaded port Avith the intention of violating the blockade, is in 
 itself illegal. But neither that case nor any 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 is commenced, is an offence against 
 the law of nations, where there is no premeditated intention of break- 
 ing the blockade, if it shall be found to continue in force when the 
 ship arrives at the port. Any such determination would be destruc- 
 tive, in many instances, of the fair commercial speculations of neutral 
 merchants, to whom it might be of the first importance 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. In the present case, there was no evidence of any under- 
 standing between the contracting parties that the defendant was to 
 break the blockade of Terceira, in order to deliver his outward cargo. 
 Indeed, the fact of the blockade did not appear to enter into the 
 contemplation of either party until after the defendant's son the 
 captain of the vessel, had signed the charter-party for his father ; 
 and, upon the evidence, the blockade had ceased to be a real and 
 effective blockade long before the charter-party Avas entered into. 
 
 " We sec, therefore, no reason for holding the contract to be void 
 on the ground of illegality. 
 
 " As to the second point, it is sufficient to say, that as the blockade 
 had been publicly notified to the government of England, the con- 
 tracting parties must be taken to have entered into the charter-party 
 with an equal knowledge of its existence; no difficulty, therefore, 
 attending the performance of the contract can be set up as an excuse 
 for its non-performance. In that ease the rule of law laid down in 
 Paradine v. Jane (c) applies, viz. : ' That where a party by his own 
 contract creates a duty or charge upon himself, he is bound to make it 
 good, if he may, notwithstanding any accident by inevitable necessity, 
 because he might have provided against it by the contract.^ " 
 
 This judgment is in conformity with the opinion delivered by Lord 
 Stowell, in the case of an American ship [d), condemned by him for 
 
 {a) It has been decided that contracts saiictinned by lutcniatioual law, are not 
 
 of partnership for blockade running, ex illegal in the sense that the performance is 
 
 jj(i7-{e Chava.sse,Bl L. J. B. 17, and for a breach of mnnicipal law, or tliat they are 
 
 service as a marine on board a ship to be not enforceable by a conrt of the loci con- 
 
 employed in blockade runnins-, or for carry- iractus. 
 
 ing on trade with, or introducing contra- (6) 2 Rob. Ad. Rep. 110. 
 
 band of war, into a blockaded port, the 7Z^e/e«, (c) Alleyn's Rep. 27. 
 
 35 L. J. Ad. 2 ; Aston, p. 2, though illegal {d) The Shepherdess, 5 Rob. Ad. Rep. 
 
 in the sense of exposing the parties jier- 262. 
 forming them to such penalties as are
 
 4. BLOCKADE OF TOKT OF DESTINxiTION. 445 
 
 an attempted breach of the blockade of Havre. Adverting to that Chap. 11. 
 
 opinion^ Lord Texterdex, m the case of Naylor v. Taylor, an action 
 
 on a policy of insurance, expressed himself as follows: "We think 
 there is no ground for saying that this voyage as insured was illegal 
 in its commencement; indeed, according to the opinion of Lord 
 Stowell, in the case of the Shepherdess, the vessel might have sailed 
 to Buenos Ayres, without contravening the laws of nations, provided 
 it was a part of the original intention to inquire as to the continuance 
 of the blockade at some port of the blockading country ; and in this 
 case inquiry might have been made at Monte A^ideo, or of any of the 
 Brazilian ships met in the river Plate, and the policy is framed upon 
 a doubt whether the blockade would continue at the time of the ship's 
 arrival at the Plate, and does not indicate any intention to break the 
 blockade^' ie). 
 
 But, subject to the exception to be presently noticed, a neutral mer- 
 chant is not at liberty to speculate on the greater or less probability 
 of the termination of the blockade, and say to the master — '' If you 
 don't meet with the blockading force, enter ; if you do, take warning, 
 and proceed elsewhere.-" The rule is, that after knowledge of an 
 existing blockade, it is not lawful to go to the very station of blockade 
 under pretence of inquiry (/). Here in Europe, where the different 
 states have constant intelligence, and may be said to live as it were 
 under one roof, it never can be permitted that a ship shall sail with a 
 knowledge of the blockade under pretence of further inquiry at the 
 spot blockaded; and lingering near a blockaded port, when it shows 
 an intention of entering the port, is as much a breach of the blockade 
 as continuing in the course to it after notification {y) . 
 
 On this question of intention [h), a distinction has been taken be- 
 tween vessels sailing from a great distance to a blockaded port, and 
 vessels sailing to it from ports in its vicinity. An American ship, 
 taken by the French, on a voyage from America to Amsterdam, was 
 retaken by the English, and proceeded against in the Admiralty for 
 an intentional breach of the blockade of Amsterdam. 
 
 '^I certainly," said Lord Stowell, " cannot admit that Americans 
 are to be exempt from the commonelfectof a notification of a blockade 
 existing in Europe. But it is not unfair to say, that, lying at such a 
 distance, it is not unnatural that they should send their ships con- 
 jecturally upon the expectation of finding the blockade broken up, 
 after it existed for a considerable time. A very great disadvantage 
 indeed would be imposed upon them if they were bound rigidly by the 
 rule which justly obtains in Europe, that the blockade must be con- 
 ceived to exist, till the revocation of it is actually notified. If this 
 rule were rigidly applied, the eftect of the blockade would last two 
 months longer upon them than upon the trading nations of Europe. 
 That American merchants 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 deter- 
 
 ( e) Naylor v. Taijlor, 9 B. & C. 119. (y) The MizahetJi,, 1 Edw. 198. 
 
 (/) The Spes and Irene, 5 Hob. 7(>. (h) The Betsey, 1 Rob. Adm. Rei). 332.
 
 44G PTSSOLUTIOX OF COXTEAOTS. 
 
 Part IV. mined or not, is, I think, not exceptionable, thougli I certainly agree 
 — - that this inquiry shonld l)e made, not in the very month of the river or 
 estuary, from the ])lockadino; vessels, but in the ports that lie in the 
 way, and which can furnish information without furnishing oppor- 
 tunities of fraud." But evidence of innocent intentions will be of little 
 avail against the actual conduct of the master whom the owners have 
 appointed as their agent, and by Avhose imprudence or fraud they 
 must be bound. "It would," said Lord Stowell, "be the easiest 
 thing in the world to put on board instructions perfectly smooth and 
 unobjectionable; if they alone could be sufficient to exonerate the 
 owner from the penalty attending the misconduct of the vessel by 
 imputing it to the barratry of the master, there would be an end to 
 all means of enforcing a blockade " (a) . 
 
 The principle of this distinction has been expressly recognised (Z») 
 in treaties between several continental states, and the states of North 
 and South America. 
 
 The judgment of the Judicial Committee of the Privy Council, 
 pronounced by the Chancellor of the Duchy of Cornwall (Lord Kings- 
 down), in an appeal from a sentence of the Court of Admiralty, con- 
 demning the neutral ship Frandsca for breach of an alleged blockade 
 by Admiral Napier of the port of Riga, presents a masterly exposition 
 of the law of nations respecting blockade, and of the rights of bel- 
 ligerents and neutrals, as afifected by it, in their application to cir- 
 cumstances of extreme nicety and complication. 
 
 Conformably as to the first of the following points with the 
 opinion of the learned Judge of the Court of Admiralty, it is there 
 laid down : — 
 
 1. That by the law of nations, a belligerent power shall not concede 
 to another belligerent, or take for itself the right of carrying on com- 
 mercial intercourse, prohibited to neutral nations ; and that no block- 
 ade can be legitimate which admits to either belligerent a freedom of 
 commerce denied to the subjects of states not engaged in the war, 
 
 2, That a blockade, modified as to ingress and egress by the 
 Orders in Council, ordinances and ixkase of the belligerents (c), as 
 
 (rt) The SliepTierdess, 5 Itob. 262. from seizure, it w.is provided : " Tliat any 
 
 (i) Manning's Law of Nations, p. 327. Kussiau merchant vessel which, prior to the 
 
 ((?) In this case, the announcement by Sir 16th of May, 1854, sliouUl have sailed from 
 
 C. Napier, in a letter dated Keoge Bay, any port of Russia, situated either in or 
 
 11th April, 1854, of his iiUeutlon to sail for upon the shore or coasts of the Baltic Sea, 
 
 the Gulf of Finland, to place in a state of or of the White Sea. bound for any port or 
 
 blockade the whole of the Russian ports in place in her Majesty's dominions, shonld be 
 
 the Baltic, and in the Gulfs of Finland and permitted to enter such last-mentional port 
 
 Bothnia, appears, by an unfortunate mis- or place, and to disch.irge her cargo and 
 
 take, to have been considered by the British, afterwards to depart without molestation ; 
 
 minister at Copenhagen, the British consul and that any such vessel, if met at sea by 
 
 at Memel, and by the Admiral himself, as any of her Majesty's ships, should be per- 
 
 equivalent to an actual blockade of all the mitted to continue her voyage to any port 
 
 Russian ports in those seas. Upon the pro- not blockaded;" — of the corresponding Or- 
 
 mulgation, therefore, of the Order in Coun- dinance of the French government, also of 
 
 cilof the 15th of April, 1854, by which, after the 15th April, by which Russian vessels 
 
 reciting a previous order of the 29th of bound for any place iu France or Algeria 
 
 March, exempting Russian vessels in British were to be at liberty to leave any Russian 
 
 ports, or on their voyage to British ports, ports in the Baltic and Wh/te Sea before the
 
 4. r.LOC;KADE OF rOET OP PESTINATIOX. 447 
 
 between themselves^ fails in that essential quality of a blookaclej the Chap. 11. 
 
 interdiction of trade to and from the i^lacc blockaded^ on which alone 
 
 the exceptional illegality at such place, of commerce, not in itself 
 unlawful between neutral and belligerent, depends. 
 
 3. That even if a blockade, modiiied to a limited extent as between 
 the belligerents, could be considered valid in point of law to the like 
 extent against neutrals, it could only be so after the nature of the 
 modification, and the degree of liberty permitted by it to the trade of 
 neutrals, had been defined and communicated to them. 
 
 4. That although notice through the medium of general notoriety 
 of a blockade de facto, will be presumed against the master of an 
 offending vessel, it must be notice of such a charater, as if conveyed 
 to him by distinct intimation from a competent authority, would 
 have been binding; and that where notification of an intention only, 
 on the part of the admiral of a belligerent, to blockade ports, of 
 which Iliga was one, and not of its actual blockade, had reached the 
 place at which notice through the medium of notoriety was alleged 
 to have been acquired, and such notoriety was accompanied by reason- 
 able grounds of doubt, whether a Ijlockade known to be relaxed l)y 
 express arrangement between the belligerent states, had any legal 
 existence, or was intended to be enforced, or valid against neutrals, — 
 no such notice could be inferred. This judgment is in entire accord- 
 ance with the decisions which are cited in support of it. 
 
 "A blockade," said Lord Stoavell, in the case of the Rolla {d), 
 " is a sort of circumvallation drawn round a place, by which all 
 foreign connexion and correspondence are, as far as human force can 
 effect it, entirely cut off. It is intended to suspend the entire com- 
 merce of that place, and a neutral can no more be permitted to assist 
 the traflfic of exportation than of importation. 
 
 " The notice," said his lordship (decreeing restitution of the 
 Hehirich and Maria (e), a neutral ship, captured for an alleged 
 attempt to enter the poD't of Amsterdam, to which a blockade, notified 
 by the officer in command of the blockading squadron as extending to 
 ail the Dutch ports, was de facto confined), " is in point of authority, 
 illegal. At the time when it was given there was no blockade which 
 extended to all Dutch ports. A declaration of blockade is a high act 
 of sovereignty, and a commander of a King's ship is not to extend it. 
 The notice is also, I think, as illegal in effect as in authority. It 
 
 15th May, and pursue their voyage and re- tween the Admiral's notification o£ his in- 
 
 turn to any port not blockaded ; — of a further tentiou, the construction put upon it by the 
 
 French Ordinance of the 26th of April, by British minister and consul, and the letter 
 
 which instructions were given to Frencli of the Authentic Acts of the belligerent 
 
 cruisers to allow free passage to all Russian governments, had caused the greatest un- 
 
 vessels loaded ia Russian ports on French certainty to prevail respecting the actual 
 
 account, or on English account, for English state, more especially as affecting neutrals, 
 
 ports up to the 15th Maj- ; .and of a Russian de facto and dejure, of the alleged blockade, 
 
 ukase, issued on the ground of the orders — 3Ir. Justice Hhee. 
 
 made l)y the allied powers, by which six {d) 6 Rob. 372; a.nil sae the Fredericl; 
 
 weeks, Irom the 25th of April, were allowed Molke, 1 Rob. 87; the Betsy, 1 Rob. 93; 
 
 to English and French vessels in Russian the Vrottw Juditli, 1 Rob. 151 ; the Success, 
 
 ]Kirts in the Baltic, fur taking on board their 1 Dobs. 13-1. 
 
 cargoes and for an unobstrucred depaiiure (e) 1 Rob. 118. 
 for foreign ports : — tlie apparent confiict be-
 
 448 DISSOLUTION OF COXTEACTS. 
 
 Part IV. cannot be said that sucli a notice, thougli had for other ports, is good 
 for Amsterdam. It takes from the neutral all power of election as to 
 ■what other port of Holland he should go to, when he found the port 
 of his destination nnder blockade. A commander of a ship mnst not 
 reduce a neutral to this kind of distress; and I am of opinion, that if 
 the neutral had conti'avened the notice, he would not have been sub- 
 ject to condemnation." iVnd again, in the ease of the RoIIa (a), 
 *'A11 that is necessary to make a notification effectual and valid, is, 
 that it shall be communicated in a credilile manner; because, 
 thongh one mode may be more formal tlian another, yet any com- 
 munication which brings it to the knowledge of the party, in a way 
 which could leave no doubt on his mind as to the authority of the 
 information, would be that which ought to govern his conduct.''^ 
 
 5. Recent Decisions. 
 
 The duty of a master to whom, upon his arrival at the port of 
 loading, notice is given by the merchant of his inability to provide a 
 cargo, has already been adverted to {b). It has been decided, in 
 recent cases, that such an intimation given to a master, during the 
 time allowed for loading, but not accepted and acted upon b}' liim as 
 a renunciation of the charty-party, is not a l^reach by the merchant 
 of his contract to furnish a cargo (c) . 
 
 It was held also, in the first of the cases last referred to that where 
 by the terms of a charter-party between British subjects its perform- 
 ance was to be in part dispensed with in the event of war — the war, 
 to jDroduce that elfect_, must be a war which rendered the perform- 
 ance of the contract by them unlawful; e.ff., a war between England 
 and Russia, not one between Russia and Turkey. 
 
 Although contracts which cannot be performed without being 
 guilt}^ of the unlawful act of trading with the King's enemies are 
 dissolved by the breaking out of hostilities, it was in a late case con- 
 sidered that a declaration of war against a foreign state does not 
 necessarily render unlawful the jjerformauce of a contract by a British 
 subject within its territory. "The cargo,'' it was observed by Lord 
 Campbell, " which he has contracted to supply, may have been ])ur- 
 chased beforehand by him, or by the subject of a friendly or allied 
 state, in either of which cases it may be meritorious to save it from 
 the grasp of the enemy:" and on these grounds, where a plaintiff, 
 who Avas the master of a vessel and the subject of a friendly and 
 
 (a) 6 Rob. 372. in Ex. Ch., 31 L. J. C. P. 284; in which 
 
 (i) Ante, p. 439. it was held that a cause of action arises on 
 
 (e) Avert/ \. Boioden, 5 E. & B. 714; in the explicit renunciation of a contract by 
 
 Ex. Ch., 6 E. & B. 953; Seid v. Soskins, the person bound to perform it, and the 
 
 5 E. & B. 729 ; in Ex. Ch. 6 E. & B. 953 ; acceptance by the other contracting party 
 
 2 E.:itB. 578; -Bar?'/e/Lv.-Bi/i«, 2 C.B.(x.s.) of such renunciation — though the time 
 
 5G3; SiTndsce IIoe/isfery.Delatoi(r,2Fj.&:li. for performance of the contract has not 
 
 678, and the Danube and Black Sea Sail- arrived, 
 wai/ Co. V. Xenos, 11 C. B. (n.s.) 152 ; S. C,
 
 5. RECENT DECISIONS. 449 
 
 neutral state, had agreed by charter-party -with a British subject to Chap. 11. 
 proceed to Odessa, and tlierc load a cargo of grain to be provided by 
 the factors of the defendant, a plea that before the ship arrived at 
 Odessa, and before the defendant had provided or purchased any 
 cargo to be loaded on board the said ship, war was declared against 
 Russia, and it thereby became impossible for him to perform his 
 agreement without trading with the Queen's enemies, and that 
 thereby the contract became and was Avholly rescinded, was held 
 on demurrer to be no answer to the action (d) . In a subsequent 
 case, in which the plea alleged that the plaintiff and defendant were 
 British subjects ; that both of them had notice of the war between 
 our Queen and the Emperor of Russia, before the alleged breach of 
 the contract ; that Odessa, the agreed poi't of loading, was within his 
 dominions ; and that the defendant could not^ without trading and 
 corresponding with the enemy, have procured nor the plaintiffs have 
 received a cargo, the contract was held to have been dissolved. 
 " Here,'' said Lord Campbell, ''the defendant, by the averment in 
 his plea, that he could not have loaded the ship Avithout trading with 
 the enemy, acquits himself of all blame. He negatives the supposi- 
 tion that before the declaration of war he could have provided a cargo 
 for the ship from Russian subjects, or that after the declaration of 
 war it would have been possible for him to have loaded without 
 trading and corresponding with the enemy. To meet the possibility 
 that a cargo, the property of British subjects or of our allies, might 
 have been loaded in the ship after the declaration of war, there is an 
 averment that the plaintiffs could not have received a cargo on board 
 without trading with the enemy. It is material in this case, that the 
 owners of the ship were British subjects. It therefore was the duty 
 of the captain of the ship as soon as he heard of the declaration of 
 war to make his escape, and to seek a place of safety, instead of 
 lingering at Odessa in the hope of obtaining a cargo, although he 
 might safely have done so if he had not been a British subject, and 
 the ship had been neutral property'' (e). 
 
 The decision in the former of these cases was reversed by the Court 
 of Exchequer Chamber in a judgment delivered by Willes, J., 
 asserting the principle that the object of war, being as much to 
 cripple the enemy's commerce as to capture his property, a declara- 
 tion of war imports a prohibition of commercial intercourse with the 
 inhabitants of the enemy's country, and renders such intercourse, 
 except with the license of the Crown, illegal, and that all contracts 
 having such intercourse for their object are dissolved. " In ordinary 
 cases," said the learned Judge, after a masterly discussion of the 
 
 (d) Esposito V. Boioden, 4 E. & B. 963. The jury, under the direction of the learned 
 
 The issue of fact, "impossible or not," Judge, found a verdict for the defendant, 
 without trading and corresponding with (e) Eeid v. Eoskins, 5 E. & B._ 729. It 
 
 the enemy, was afterwards tried before has been thought better not to disturb the 
 
 Baron Platt, at York, and evidence given continuity of Lord Tenteeden'8 text by 
 
 that duties of export would become due to introducing these cases in the second section 
 
 the Russian Government on the shipment. of this chapter, to which they more appro- 
 priately belong. — Mr, Justice Shee, 
 
 2 G
 
 450 DISSOLrTION OF CONTEACTS. 
 
 Part IV. authorities on the question in the Court of Admiralty, the Courts of 
 
 Common Law, and the Courts of the United States of America (a), 
 
 '^the more convenient course for both parties would seem to be, that 
 both should be at once absolved, so that each one becoming aware of 
 the fact of a war, the end of which cannot be foreseen, making the 
 voyage, or the shipment, presumably illegal for an indefinite period, 
 may be set at liberty to engage in another adventure without waiting 
 for the bare possibility of the war coming to an end, in sufficient time 
 to allow of the contract being fulfilled, or some other opportunity of 
 lawfully performing the contract perchance arising. The law upon 
 this subject was doubtless made, according to the well-known rule, to 
 meet cases of ordinary occurrence, and in times when to permit 
 trading with the enemy even* through neutrals, was the exception, not 
 the rule. These considerations may explain the origin of the law 
 authoritatively laid down in the books, as to war at once working an 
 absolute dissolution of the contract. We are of opinion that for a 
 British subject not domiciled in a neutral country, which the defen- 
 dant cannot be presumed to be, to ship a cargo from an enemy's port, 
 even in a neutral vessel, without license, is an act, prima facie, and 
 under all ordinary circumstances, of dealing with the enemy, and 
 therefore forbidden by the law ; that it lies on the person alleging it 
 to be legal, to establish the fact ; and that in the absence of proof 
 that it would be legal, neither a British subject nor an alien friend can 
 found any action upon the fact of its not having been performed. 
 The Sovereign of this county has a right to declare war, with all its 
 consequences, enforcing or mitigating them either generally or in 
 particular instances, as may be thought best by the Government. 
 One of these consequences, not removed or dispensed with by any 
 treaty, by order in Council, or licence, or by any special circum- 
 stances of necessity in the particular case is, that trade and dealing 
 with the enemy are forbidden. The plea alleges that the contract 
 could not, from the time of the declaration, have been fulfilled without 
 such dealing or trade. That, as we have already shewn on grounds 
 not considered by the Court of Queen's Bench, may be true. If it 
 may be, then inasmuch as the law justifies what it commands, and 
 inasmuch as it efi^ects that purpose by dissolving the contract, which 
 presumably cannot, within any reasonable time, be executed without 
 dealing and trading with the enemy, the plea founded upon that state 
 of the law is sufficient {b) . 
 
 (a) Gist v.Araso7i,lT.'R.8S; the Moop, the .Sf. Lawrence, 1 Gallison (U.S.) 467; 
 
 1 Eob. 196; Potts v. Bell, 8 T. R. 548; the Joseph, 1 Gallison (U.S.) 467. Kent's 
 
 Bell V. Oilson, 1 B. & P. 345 ; Furtado v. Com. 3rd vol. 4 ed., p. 248. 
 
 Badgers, 3 B. & P. 191 ; Toutenq v. Hub. (b) Esposito v. Bowden, 7 E. & B. 763 ; 
 
 bard, 3 B. & P. 291; Bowker v. Hodgson, 27 L. J. Q. B. 17; Geipel v. Smith, 41 
 
 3 M. & S. 270; Atkinson v. Bitchie, 10 L. J. Q. B. 153; Adamson v. Newcastle, 
 
 East, 530; the Juffroow Catharina,o B.oh. cfc, Ins. Ass., 48 L. J. Q. B. 670; L. K. 
 
 140; the Madonna, 4 Eob. 195; Gi-is- 4 Q. B. D. 462. 
 wold V. Johnson, 16 Johnson (U.S.) 438;
 
 Chap. 1. 
 
 PART THE FIFTH. 
 
 OF THE HIRING OF MERCHANT SEAMEN; THE EMPLOYMENT OF 
 SEAMEN BY THE MONTH OR FOR THE VOYAGE ; THE EARNING 
 AND PAYMENT OF WAGES; THE LOSS AND FORFEITURE OF 
 WAGES ; AND THE MODES OF ENFORCING PAYMENT OF THEM 
 BY THE AID OF COURTS OF JUSTICE. 
 
 CHAPTER I. 
 
 OF THE HIRING OF SEAMEN; AND HEREIN. 
 
 Sects. 1. Of the Hiring of Seamen generally, p. 451. 
 
 2. Of Ships' Articles — Regulations respecting them — of Merchant Shipping 
 
 Acts, p. 452. 
 
 3. Provisions for the protection of Seamen and the preservation of their Health 
 
 p. 457. 
 
 4. Verbal agreement for Wages not ahsolutely void, p. 459. 
 
 5. Seamen not entitled to increased Eemiineration for extraordinart/ Service 
 
 p. 459, 
 6. Frovisions of 17 Sf 18 Vict. c. 104,/or the licensing by the Board of Trade of 
 persons authorized to procure Seamen, for Merchant Ships, p. 461. 
 
 1. Of the Hii'ing of Seamen generally. 
 
 [Seamen employed in mercliant ships are usually hired at a certain 
 sum, either by the month or for the voyage. In the former case, the 
 amount of the payment that may be earned by them depends upon 
 the length of the voyage ; in the latter, it is fixed invariably without 
 any regard to the duration of the voyage. In the fishing trade, par- 
 ticularly the whale-fishery [see sect. 187], and in private ships of war, 
 the seamen usually serve under an engagement to receive a certain 
 portion of the profits of the adventure. Such an engagement is 
 rather in the nature of a partnership (c) than of a contract of hiring 
 and service, and the objects oE it do not properly fall under my con- 
 sideration. An engagement to receive a certain part of the freight 
 to be earned by a merchant ship, which seems formerly to have been 
 not unfrequent is at present seldom, if ever, made.] 
 
 (c) But Qot one; see TVilkiiison v. Frazer, tlshennen where vessek engaged in fishery 
 
 1 Esp. 182 ; Dry v. Bosicell, 1 Campb. 329 ; off the coast of the United Kingdom, see 
 
 Perrott v. Bryant, 2 Y. & C. 61 ; Pott v. 36 & 37 Vict. c. 82, s. 8, 
 Fi/ton, 3 C. B. 32. As to agi'eonicnts with 
 
 3g2
 
 452 
 Part V. 
 
 HIEING Of SEAMEN, 
 
 S, Of Ships' Articles — Regulations respectiny them — of Merchant 
 
 Shipping Acts. 
 
 Repealed Before the M. S. Act^ 1854^, statutes were passed for the purpose of 
 
 enactments, regulating agreements Avith seamen. The 5 & G Will. 4^ c. 19, 
 recited {a) and repealed all the previous Acts upon this subject. 
 That Act was repealed by the " General Merchant Searaen^s Act/' 
 7 & 8 Vict. c. 112 j which so far as it related to agreements with 
 seamen was repealed by the '^^ Mercantile Marine Act/' 13 & 14 Yict. 
 c. 93; since also repealed bv 17 & 18 Yict. c. 120. 
 
 By the " M. S. Act, 1854/' 17 & 18 Yict. 104, it is enacted, that 
 every master of a ship (see sect. 109), except ships of less than eighty 
 tons registered tonnage, exclusively employed in trading between 
 different ports on the coasts of the United Kingdom (h), shall, on 
 carrying any seaman to sea as one of his crew, enter into an agree- 
 ment in a form (c) to be sanctioned and issued by the Board of Trade, 
 which shall be dated at the time of the first signature thereof, be 
 signed by the master before it is signed by any seaman, and shall 
 contain, as terms thereof, the following particulars : — 
 
 1. The nature (f/), and, as far as practicable, the duration of the 
 intended voyage, or engagement {e) . 
 
 2. The number and description of tlie crew (a point of great im- 
 
 Prescnt enact- 
 ments. 
 
 Form and sig- 
 nature, kc, of 
 articles. 
 
 (rt) 2 & 3 Anne, c. 6 ; 2 Geo. 2, c. 36 ; 
 2 Geo. 3, c. 31 ; 31 Geo. 3, c. 39 ; 45 Geo. 3, 
 c. 81 J 37 Geo. 3, c. 73; 58 Geo. 3, c. 38 j 
 59 Geo. 3, c. 58 ; 4 Geo. 4, c. 25 ; 3 & 4 
 \Vm. 4, e. 88. The Oeorqe Home, 1 Hagg. 
 870. 
 
 (6) See Shepherd v. EiUs, 11 Ex. 55. 
 
 (c) See form in Appendix. 
 
 {d) [The Westmoreland, 1 W. Eob. 221. 
 The repealed statute 31 Geo. 3, c. 39, 
 required the voyage to be mentioned, and 
 it was held, this ought to be done with as 
 much precision as could conveniently be 
 introduced, and so as to give the mariner 
 due notice of the adventure on which he 
 embarked. In the case of a ship bound to 
 New South Wales, where the voyage was 
 expressed to be to New Soutli Wales and 
 India or elsewhere, and to return to a port 
 in Europe, Lord Stowell thought the 
 ■words, or elsewhere, ought not to l)e taken 
 in the indefinite latitude in which they 
 were expressed, but must receive a reason- 
 able construction conformable to a certain 
 extent to the necessities of commerce, and 
 would not authorize the master to proceed, 
 as in fact he had done, from Port Jackson 
 to New Zealand in search of a cargo ; from 
 thence to Valparaiso, and Lima, and 
 Otaheite, and back to Sydney Cove, and 
 
 from thence to Calcutta. The Minerva, 1 
 Ilagg. 374. And in another case, where 
 the voyage was expressed to be from London 
 to Batavia, to any ports and places, the 
 East India seas or elsewhere, and until her 
 final arrivivl at any port or ports in Euroi>e, 
 it appearing to have been the intention of 
 the owners at the commencement of the 
 voyage, that the ship should return from 
 India to Cowes, and there receive orders as 
 to the port of discharge ; the same learned 
 judge considered the description of the 
 voyage much too general to answer the bei\fi- 
 ficial purposes intended by the statute re- 
 quiring the voyage to be \uentioned in the 
 contract, and tliought the intention to 
 come to Cowes for orders as to the port 
 of delivery, ought to have been mentioned. 
 The George Some, 1 Hagg. 370. See the 
 Eliza, 1 Hagg. 182, and Countess of Har- 
 court, id. p. 248.] 
 
 {e) Sec Fraser v. Hatton, 2 C. B. (x.s.) 
 512. By 36 k 37 Vict. c. 85, s. 7, the 
 agreement may, instead of stating the 
 nature and character of the intended voyage 
 or engagement, state the maximum period 
 of the voyage or engagement, and the place, 
 or parts of the world, if any, to which the 
 vovage or engagement is not to extend.
 
 2. ships' articles, etc. 453 
 
 portancc to a seaman offering himself for employment), specifying Chap. 1. 
 how many are engaged as sailors. 
 
 3. The time at which each seaman is to be on board, or to begin 
 work. 
 
 4. The capacity in which each seaman is to serve. 
 
 5. The amount of wages Avhich each seaman is to receive. 
 
 6. A scale of the provisions which arc to be furnished to each 
 seaman. 
 
 7. Any regulations as to conduct on board, and as to tines, short 
 allowance of provisions, or other lawful punishments for misconduct, 
 which have been sanctioned by the Board of Trade as regulations 
 proper to be adopted, and Avhich the parties agree to adopt ; and shall 
 be so framed as to admit of stipulations, to be adopted at the will 
 of the master and seaman in each case, as to advance and allotment 
 of wages ; and may contain any other stipulations which are not con- 
 trary to law (/). " , T 1 
 
 With respect to foreign-going ships, that is, ships employed in trad- 
 ing or going without the following limits, that is to say, the coasts of 
 the U. K., the islands of Guernsey, Jersey, Sark, Alderney, and Man, 
 and the continent of Europe between the River Elbe and Brest 
 inclusive, every agreement must be signed by each seaman, in the 
 presence of a superintendent of a mercantile marine office, who is to 
 attest the signature of such seaman, after having caused it to be read 
 over and explained to him, or otherwise ascertained tliat he under- 
 stands it. When the crew is first engaged, it is to be signed in dup- 
 licate. One part is to be retained by the superintendent; the other, 
 which must contain a place or form for substitutes or persons engaged 
 after the departure of the ship, is to be delivered to the master. The 
 agreement with substitutes engaged in the place of seamen, whose 
 services arc lost within twenty-four hours of the sliip^s putting to 
 sea, may, when practicable, be made before some superintendent of 
 a mercantile marine office duly appointed as provided by the Act ; 
 and where the engagement is not so made, the master shall, before he 
 puts to sea, if practicable, and if not, as soon after as possible, cause 
 the agreement to be read over and explained to the seaman before 
 " some consular officer, officer of customs, or on board the ship," and 
 the seaman shall thereupon sign the same in the presence of such 
 officer, or some other witness, who shall attest his signature {g). 
 
 Foreign-going ships, making voyages averaging less than six months 
 in duration, may have running agreements, extending over two or 
 more voyages, and terminating on the next following 30th of June or 
 3lst of December, or first arrival of the ship at her port of destination 
 in the U. K. after such date, or the discharge of cargo consequent 
 upon such arrival ; and the master of every foreign-going ship for 
 which such agreement is made, shall, upon every return to any port 
 
 (/) Sect. 149. Sec 25 & 26 Vict. c. 63, to the crew, which have been sanctioned by 
 
 s. 13, what vessels are exempted from the the Board of Trade, 
 operation of this section. See in Appendix (^) Sect. 150, 
 
 forms of agreements, to be made accessible
 
 454 HIEING OF SEAMEN. 
 
 Part V. in the U . K.^ before the tiual terminatiou of the agreement^ discharge 
 or engage before the superintendent of a mercantile marine office 
 any seaman whom he is required by law {a) so to discharge or engage. 
 With respect to home-trade ships^ crews or single seamen may, if the 
 master thinks fit, be engaged or discharged before a superintendent of 
 a mercantile marine officer in the manner directed with respect to 
 foreign-going ships, and the master must, in every case in which the 
 engagement is not so made, before the ship puts to sea, if practicable, 
 and if not as soon afterwards as possible, cause the agreement to be 
 read over and explained to each seaman, who shall thereupon sign the 
 same in the presence of a witness, who shall attest his signature {b). 
 The agreement for home-trade ships may be made with the seaman 
 by the owner, and for service in any two or more ships belonging to 
 him (c). 
 
 In the case of home-trade ships of more than 80 tons burden the 
 agreement must not extend beyond the next following 30th of June 
 or 31st of December, or the first arrival of the ship at her final port 
 of destination in the U. K. after such date, or the discharge of cargo 
 consequent upon such arrival (d). 
 
 By 39 & 40 Vict. c. 80, s. 26, sub-sect. 5, the master of the ship 
 must enter in the agreement with the crew before it is signed by any 
 member of the crew, a copy of the statement in writing, referred to 
 in sub-sect. 3, of the distance in feet and inches between the centre 
 of the load line disc and the upper edge of each of the lines indicat- 
 ing the position of the ships decks which is above that centre. No 
 superintendent of any mercantile marine office can proceed with 
 the engagement of the crew until this entry is made. 
 
 Seamen engaged in the colonies are to be engaged (subject to the 
 same rules and penalties as at home) before a superintendent of a 
 mercantile marine office, or officer of customs, who is to attest the 
 fact of the signature having been made in his presence (e). 
 
 And no seaman is to be shipped at a foreign port without the sanc- 
 tion of the consul, to be endorsed upon the agreement, under a penalty 
 of twenty pounds (/). 
 
 By these agreements, called " the ship's articles,'-" forms of which, 
 aj)plicable to "foreign-going'' and "home-trade" ships, are sanctioned 
 and issued by the Board of Trade, the mariners engage to serve on 
 board the ship on the voyage therein described, to conduct themselves 
 in an orderly, faithful, honest, and sober manner ; to be at all times 
 diligent in their respective duties, obedient to the lawful commands 
 of the master and of their superior officers in everything relating to 
 the ship and her stores and cargo, whether on board the ship, in 
 boats, or on shore {(/). 
 
 (a) Sects. 151, 152. tain couditlous, this is altered by 35 & 36 
 
 (6) Sect. 155. Vict. c. 73, s. 16. What is a home-trade 
 
 (c) Sect. 150. As to agreements with ship, see 17 & 18 Vict, c. 104, s. 5. 
 
 persons employed in certain fishing vessels (e) Sect. 159. 
 
 to share in profits, see 36 & 37 Vict. c. 85, (/) Sect. 160. See Fraser v. Hation, 2 
 
 8. 8. C. a. (n.s.) 512. 
 
 (rf) Sect. 162. But now subject to cer- (g) See the forms in the Appendix.
 
 2. ships' aeticles, etc. 455 
 
 As to when agreements are exempt from stamp cluty_, see 17 & 18 Chap. 1. 
 
 Viet. c. 104^ s. 9 ; 33 & 34 Vict. c. 97. sched,, Wilson v. Lidueter, 
 
 14 Q. B. 405. *"*""'? °"- 
 
 Legible copies of these agreements (omitting the signatures) are to Copies of 
 be placed on board in such a manner as to be accessible to the crew ih) : ^^'^^^^^f *o j^° 
 and the master is liable to heavy penalties who fails to observe the d-ew, and 
 provisions of the Act respecting them (i) . delivered at 
 
 The masters of foreign-going ships, within 48 hours after a ^"'^ °^ voyage 
 ship's arrival at her final port of destination in the U. K., or officer. 
 upon the discharge of the crew, Avhichever first happens, are bound 
 to deliver such agreement to the superintendent of a mercantile 
 marine office, who shall give to the master a certificate of such 
 delivery, without which no officer of customs shall clear his ship 
 inwards [k) ; and the owners or masters of home-trade ships of more 
 than eighty tons burden, must twice in every year transmit or deliver 
 copies of all such agreements entered into by them during the pre- 
 ceding six months to such a superintendent, who shall thereupon give 
 to such owner or master a certificate of his having done so, without 
 production of which, no transire or other document necessary to the 
 conduct of such ship can be obtained {I) . 
 
 On arrival and during the ship's stay at a foreign port, the ship's 
 agreement, and all indentures and assignments of apprenticeship, are 
 to be deposited with the British consul, or if in a British colony, with 
 the officers of customs, to be kept by them during the ship's stay, and 
 returned to the master a reasonable time before his departure ; and 
 they are to make endorsements thereon, in case it shall appear to 
 them that the laws and forms have been in any respect transgressed, 
 and transmit copies of such endorsements to the registrar-general of 
 seamen (m). 
 
 If any seaman is carried out to sea Avithout an agreement in the Penalty on 
 form and manner thus prescribed having been entered into with him, ^^^^ster for 
 the master in the case of a foreign-going ship, and the master or ^ith Act 
 owner in case of a home-trade ship, forfeits the sum of 5/. {n). If 
 he neglect to cause the agreement to be posted on board as directed, 
 he forfeits the sura of 5/. (o), and any person who fraudulently alters 
 or assists in altering or delivering a false copy of any agreement, for 
 each such offence shall be deemed guilty of a misdemeanor [p). 
 
 In the case of all British foreign-going ships, in whatever part of Duties to be 
 H. M. dominions the same are registered, all seamen discharged in P'^''^"';"?^'^.^ 
 the U. K. shall be discharged and receive their wages in the presence gf seameu."^ 
 of a superintendent of a mercantile marine office duly appointed 
 under the Act, except in cases v^ere some competent court otherwise 
 directs (sect. 170) . The words here printed in italics formed no part of 
 13 & 14 Vict. c. 93, s. 96, for which this has been substituted. It was 
 
 (A) Sect. 166. (») Sect. 157. Sec Redmond v. Smiih, 
 
 (i) Sects. 157—167. 7 M. & G. 457. 
 
 ijc) Sect. 161; (o) Sect. ]66. 
 
 (0 Sect. 162. (p) Sect. 164. 
 («i) Sect. 279.
 
 456 HIEING OF SEAMEN. 
 
 Part V. held, however, ou the earlier Act, iu the case of the Araminta, 1 Swab. 
 83, that payment to seamen by ship-owners before a shipping master 
 was no satisfaction of wages pronounced for in the Court of Admiralty, 
 and that the proctor for the successful party has a lien on the sum 
 recovered, for his costs. 
 
 Upon the discharge of a seaman, he is entitled to receive from the 
 master a certificate of his service and discharge, specifying the period 
 of service and the time and place of his discharge, which certificate 
 must be signed by the master; and if the master refuse to give such 
 certificate, he incurs for every such oft'ence a penalty of 10/. {a). 
 
 The master also to whom the certificates of competency or service 
 of any certificated mate has been delivered is bound under a penalty 
 of 20/., on the discharge of such mate, to return such certificate to 
 him (a). 
 
 Every superintendent of a mercantile marine office is empoAvered 
 to hear and decide any question whatever between a master or owner 
 and any of his crew, which they may agree in writing to submit to 
 him, and for this purpose to examine all persons, and call for all log- 
 books, papers, or other documents, his decision being binding on both 
 parties, and conclusive as to their rights in any legal proceeding 
 which may be taken [b). 
 
 The master must, within and not less than twenty-four hours 
 before, paying off or discharging any seaman, deliver to him, or to a 
 superintendent of a mercantile marine office if he is discharged 
 before one, a full account, in a form sanctioned by the Board of 
 Trade, of his wages, and of all deductions to be made therefrom on 
 any account whatever (c). And upon the completion before such a 
 superintendent of any discharge or settlement, the master and owner 
 and each seaman shall sign, in the presence of such superintendent, 
 and to be attested by him, a mutual release of all claims in respect of 
 the past voyage or engagement, in a form to be sanctioned by the 
 Board of Trade ; and such release, or a certified copy thereof, under 
 the hand of the superintendent of the mercantile marine office, shall 
 be receiveable in evidence, and shall operate as a mutual discharge 
 and settlement of all claims betAveen the parties [d) . 
 
 The master, upon any discharge before a superintendent of a mer- 
 cantile marine office, must make and sign in duplicate, iu a form 
 sanctioned by the Board of Trade, a report of the conduct, character, 
 and qualifications of the persons discharged, or may state, in a column 
 to be left for the purpose, that he declines to give any opinion there- 
 upon ; and the superintendent of the mercantile marine office shall 
 retain one copy of such report, transmit the other to the registrar of 
 seamen, or to such other person as the Board directs, to be recorded, 
 and give to or endoi'se upon the certificate of the seaman's discharge, 
 if he requires it, so much of such report as concerns him (e). 
 
 Penalties for not discharging before a superintendent of a mercan- 
 tile marine office, and for not giving an account of Avages to seamen, 
 
 («) Sect. 172. (rf) Sect. 175. 
 
 (b) Sects. 173, 174. (e) Sect. 176. 
 
 (c) Sect. 171.
 
 3. TEOVISIOXS EOE PEOTECTION OF SEAMEX. 457 
 
 are imposed upon the master; aud for not appearing to give evidence^ Chap. 1. 
 or not producing papers^ upon the owner, agent, master, or member 
 of the crew, omitting, when called upon by the shipping master so to 
 do (/) ; and any person who makes, or assists in making, a false cer- 
 tificate or report of the service, qualifications, conduct, or character 
 of any seamen, or alters it, or makes use of any certificate or report 
 which is forged, or altered, or does not belong to him, will, for each 
 such offence, be guilty of a misdemeanor {g) . 
 
 Whenever a ship belonging to a subject of the U. K. is disposed of 
 at any port out of H. M. dominions, the master (unless the crew, in 
 the presence of the British consul or vice-consul, or in the case of 
 their not being any such consul or vice-consul, then in the presence 
 of one or more British resident merchants not interested in the said 
 ship, sliall signify their consent in writing to complete the voyage, if 
 continued) , or whenever the service of a seaman or apprentice belong- 
 ing to any British ship shall terminate abroad, is required to give to 
 him a certificate of discharge, and to a certificated mate his certifi- 
 cate, and besides paying him the wages to which he is entitled under 
 the agreement, either to provide him with adequate employment on 
 board some other British vessel bound to the port from which he was 
 originally shipped, or to furnish the means of sending him back to 
 such port, or to some port in the U, K. as shall be agreed upon, by 
 providing him with a passage home, or depositing with the consul or 
 vice-consul such a sum of money as he may deem reasonably suffi- 
 cient to defray the expenses of his subsistence and passage ; and such 
 consular officer or merchants are to endorse upon the agreement of 
 the ship which the seaman or apprentice is leaving, the particulars of 
 such payment, provision, or deposit ; and if the master neglects to do 
 so, such expenses, when defrayed, are declared to be a charge upon 
 the ship Avhich is so sold, and upon the owner for the time being 
 thereof (except in cases of barratry), and may be recovered against 
 such owner as so much money paid and expended on his account, 
 together with full costs, at the suit of the consul or other person 
 defraying such expenses, or as a debt due to H. M., in case the same 
 sliall be allowed to the consul out of the public moneys ; and if 
 defrayed by the seaman or apprentice, shall be recoverable as wages 
 due to him [h) . 
 
 3. Provisions for the protection of Seamen and the preservation 
 of their Health (/). 
 
 The stipulated wages, the amount of AVliich the Act requires to 
 be set down in the articles against the name of every seaman, 
 are not the only compensation provided for his faithful serAice. 
 Regulations are prescribed for the preservation of his health; his 
 
 (/) Sects. 170 — 174. subject in the form of agreement to be 
 
 (ff) Sect. 176. made accessible to tbe crew set out iu 
 
 (A) Sect. 205. Appendix; and see n«^e, p. 143. 
 
 (»') See abstract of enactments on this
 
 458 HIRING OF SEAMEN. 
 
 Part V. protection in case of accident or illness ; liis fair treatment and 
 
 personal safety at home and abroad, to which it is the duty of the 
 
 master to conform, and which can hardly be evaded without detection 
 and punishment. 
 
 By the 17 & 18 Vict. c. 104, it is enacted, that if any master of a 
 ship shall force on shore and leave behind, or otherwise wilfully and 
 wrongfully leave behind, on shore or at sea, in any place in or out of 
 H. M.'s dominions, any seaman or apprentice belonging to his ship 
 before the return of such ship to the U. K., or before the com- 
 pletion of the voyage or voyages for which such person shall be 
 engaged, every person so offending shall be deemed guilty of a mis- 
 demeanor [a). 
 
 It is further provided, that the master shall not discharge any of 
 his crew, in any place situate in any British possession abroad (except 
 the possession in which he was shipped), without the sanction in 
 writing to be endorsed on the agreement of some superintendent 
 of a mercantile marine office or other officer appointed by the local 
 government in that behalf, or in the absence of such functionary, then 
 of the chief officer of customs resident at or near the place where 
 the discharge takes place, nor at any other place abroad without the 
 sanction in writing of the British consular officer there, or in his 
 absence, of two respectable merchants resident there, all which said 
 functionaries and merchants are empowered to inquire in a summary 
 way into the grounds of such proposed discharge, by examination on 
 oath, and to grant or refuse such sanction as appears to them to be 
 just (b). And no master shall leave behind at any place abroad, any 
 person of his crew on any grounds whatever, without previously 
 obtaining a certificate in writing from such functionary or merchant 
 endorsed as aforesaid, stating the fact and the cause thereof, whether 
 such cause be unfitness or inability to proceed to sea, or desertion, or 
 disappearance, and if he do so, he is for each default to be deemed 
 guilty of a misdemeanor {b) . 
 
 The regulations of the statute for the registration of seamen, for 
 the preservation of their health, for providing them with medicines 
 and medical ad"\dce, in case of sickness or accident, have already been 
 mentioned (c) . The quantity of provisions each seaman is to receive 
 per day is now required to be specified in the agreement, and if that 
 quantity be reduced one-third or less, he is to receive 4:d. ; if more 
 than one-third, Sd. per day, in addition to, and recoverable as 
 wages; and if they be of bad quality and unfit for use, 1^. a 
 day {d). 
 
 Such are the principal clauses of this important statute, relating 
 to the hiring and treatment of mariners. It contains other provisions, 
 respecting the earning, payment, and forfeiture of wages, which will 
 be noticed in the following chapters of this part : for binding and 
 
 (a) Sect. 207. See repealed enactments, &c., to be proxncled, sec 30 «S; 31 Vict. c. 124. 
 
 6 & 6 Will. 4, c. 19 ; 7 & 8 Vict, c. 112i As to rules for medical inspection of sea* 
 
 (6) Sect. 207. men, see 30 & 31 Vict. c. 124, s. 10. 
 
 (c) Ante, p. 143 — 145. As to medicines, (d) Sect. 223. The Josephine, Swa. 152.
 
 5. EXTEAOEDINAEY SERVICE. 459 
 
 turuiug over parish boys as apprentices to the sea service, and the Chap. 1. 
 registration of their indentures and assignments, as well as those of 
 apprentices not bound by the parish (e) ; for the keeping a list or 
 muster roll of the crew, including master and apprentices, in a form 
 prescribed by the Act, its delivery on the return of a foreign-going 
 ship, or half-yearly if a home-bound ship, to the superintendent of the 
 mercantile marine office (/), and the production of it, as well as of 
 the ship's articles and log-book by the master, when required, to 
 officers of H. M/s ships, the collectors or chief officers of the customs 
 at any place in H. M/s dominions, to the superintendent of the mer- 
 cantile marine office, and to the registrar and his assistants in the 
 " general register of the merchant seamen" {(j) . 
 
 Any two justices of the peace residing at or near the port at which 
 any ship shall arrive have power to hear and determine all claims, 
 complaints, and disputes between masters of ships and their appren- 
 tices {h) . And any master refusing to send on shore, in charge of 
 the mate or some trustworthy person, any apprentice desirous of 
 complaining to a justice of the peace, consular officer, or naval officer 
 in command of any of H. M/s ships, as soon as the service of the 
 ship Avill permit it, is liable to a penalty of 10/. {i). 
 
 As to the obligation of a shipowner to crew with respect to using 
 reasonable efforts to secure seaworthiness of ship, see 39 & 40 Vict. 
 c. 80, s. 5 [k) . 
 
 As to seamen's expenses in case of illness thi'ough neglect of owner 
 or master, see 30 & 31 Vict. c. 127, s. 7. 
 
 4. Verbal agreement for Wages not absolutely void. 
 
 The statutes do not render a verbal agreement for wages absolutely 
 void ; but impose a penalty on the master, if a written agreement is 
 not made. When a written agreement is made, it becomes the only 
 evidence of the contract between the parties ; and a mariner cannot 
 recover any thing agreed to be given in reward for his service, which 
 is not specified in the articles (/). 
 
 5. Seamen not entitled to increased Remuneration for extra- 
 ordinary Service. 
 
 [A seaman, who has engaged to serve on board a ship, is bound 
 to exert himself to the utmost in the service of the ship ; and there- 
 fore a promise made by the master, when a ship was in distress, to] 
 
 (e) Sects. 141 — 145. See 25 & 26 Vict. v. Thorn, 5 Esp. 6, cases decided before this 
 
 c. 63, s. 13. Act. 
 
 (/) Sects. 273—273. 37 & 38 Vict. (l) Whiie v. Wilson, 2 Bos. & Pull. 116, 
 
 c. 88, s. 37. and the Isabella, 2 Rob. 241, Elnoorth 
 
 (ff) Sect. 13. and Wife v. Woolmore, Guildhall Sitt., 
 
 (h) Sect. 188. Dec. 1803, before Lord Alvanlet, Ch. J. 
 
 (e) Sect. 232. Esp. N. P. C. vol. 5, p. 84. 
 
 {k) Couch V. Steely 3 E. & B. 408 ; Ealceii
 
 460 HIEING OF SEAMEN. 
 
 Part V. [pay an extra sum to a mariner as an inducement to extraordinary 
 exertion on his part, was at a trial before the late Lord Kenyox 
 esteemed to be wholly void (a) . So where two of the crew deserted 
 in the course of a voyage, and the master having in vain attempted 
 to supply tlicir places at Cronstadt, entered into an agreement with 
 the rest of the crew at that place, to divide among them the wages of 
 the deserters, if he should not be able to procure two other men at 
 Gottenburgh, which in fact he could not do, Lord Ellexborough 
 decided that the engagement Avas Avholly void. It was attempted to 
 distinguish this case from the foregoing, by suggesting that the 
 agreement was made on shore, when the master could not be supposed 
 to be under any restraint or apprehension, and not at sea, in a 
 moment of peril, like the former case : an obvious answer to this 
 would be, that if the master had not been apprehensive of further 
 desertion, he would not have made such a promise ; but the Chief 
 Justice decided the case upon the general ground. " There was," 
 said his lordship, " no consideration for the ulterior pay promised to 
 the mariners, who remained with the ship ; before they sailed from 
 London, they had undertaken to do all they could under all the 
 emergencies of the voyage ; they had sold all their services till the 
 voyage should be completed.^^ " The desertion of a part of the crew 
 is to be considered an emergency of the voyage as much as their 
 death, and' those who remain are bound by the terms of their original 
 contract, to exert themselves to the utmost to bring the ship in safety 
 to her destined port'^ (i).] 
 
 But the continuance of a voyage under circumstances in which 
 unusual danger of life (a question of degree for a jury) from inade- 
 quate equipment or unseaworthiness would be incurred, is not incum- 
 bent on a crew, and a contract for an increase of wages between the 
 master and mariners was held binding, the jury having found that it 
 was unreasonable for the vessel, one of 1,015 tons, to proceed to sea, 
 on a voyage from Port Philip, in Australia, to Bombay, with a crew 
 of only nineteen hands (<:•). 
 
 In Carter v. Hull {d), Lord Ellexbouovgh held that a purser's 
 steward on board a King's ship could not recover wages from the 
 purser, on an implied contract for his services, he being a person 
 knoMU in the service and receiving pay from the Crown, although 
 proof was given that it was usual for piu'scrs to allow their stewards 
 an annual salary. 
 
 («) narrits \. Watson, Teakc's X. V, C. rate of wages. Harris v. Carter, 23 L. J. 
 
 72. Q. B. 205 ; 3 E. & 13. 599. So he may be 
 
 {b) [iSYt/A; V. .l/y/7ci, 2 Canipb. 317. See entitled to a liighci" rate of wages by a 
 
 Thompson v. HavelocJc, 1 Campb. 527.] sailor during a voyage, entering upon and 
 
 Dafter v. CressweV, 7 D. & R. 650. Enrj- fulfilling the duties of a ]K)st superior to 
 
 land V. Davison, 11 Ad. & E. 856. The that he comuieneed with. The Providence, 
 
 Araminta, 1 K. & A. 224. But see Yates 1 Hagg. 391. Hanson v. Soi/den, L. E. 3 
 
 V. Hall, where the service for which ad- C. P. 47; 37 L. J. C. I'. 66. 
 
 ditional wages were contracted for was of (e) Hartley x. Ponsouby, 7 E. & B. 872; 
 
 an unusual and exceptional character, viz., 26 L. J. Q. B. 232. See the Mobile, Swah. 
 
 becoming an hostage. If the original con- 256. Frazer v. Hatton, 2 C. B. (>'.s.) 512. 
 
 tract of hiring is dissolved, the sailor may (rf) 2 Starkic, 861. 
 enter into a new agreement for a higher 
 
 I
 
 6. TEESONS AUTHORIZED TO PROCURE SEAMEN. 461 
 
 In Clutterbiick v. Cofin [e), tlie plaintiff^ at the request of the Chap. 1. 
 
 defendant, a captain in the Royal Navy, agreed to enter on board his 
 
 ship as captain's cook, the defendant undertaking to pay liim wages 
 over and above the government pay, to which the rating Avould entitle 
 him. The plaintiff having performed the service, it was held, that 
 there was a sufficient consideration to enable him to bring an action 
 for such wages. 
 
 This case, it will be observed, differs from others above cited, in the 
 circumstance that in them the contracts were made by persons who 
 were not at the time competent to contract, having already bound 
 themselves to give their entire services under a prior existing con- 
 tract : — here there was an agreement for service entered into while 
 the plaintiff was in another emplojTnent, and perfectly fx'ce to contract 
 in the manner he did. There being no plea but non assumpsit, the 
 objection to the contract, on the grovmd of illegality, was not open to 
 the defendant. 
 
 In this, as in all other cases, an engagement for service, made in 
 contravention of the rules of the common or statute law, will be 
 void(/). 
 
 As to claims by the crew for salvage, see post, Part VI,, Chap. 2. 
 
 6. Provisions of 17 ^ 18 Vict. c. 104, for the licensing by the Board 
 of Trade of persons authorized to prociire Seamen for 
 Merchant Ships. 
 
 We have seen that to guard the mariner from the frauds to which 
 he is exposed, through the cupidity of dishonest persons, the Board 
 of Trade is empowered to license persons to engage seamen and 
 apprentices for service in merchant ships (g), and it is enacted that 
 no person, unless duly licensed under this Act, or the owner or 
 master or mate of a ship, or some person who is bond fide the servant 
 and in the constant employ of the owner, or a superintendent of a 
 mercantile marine office, shall procure seamen for a ship in which he 
 is not interested {h) ; that no person interested in a ship shall know- 
 ingly receive any seaman hired to serve therein, contrary to these 
 provisions (i), and that every person guilty of such offences shall, on 
 conviction thereof, for every seaman or apprentice so engaged or 
 supplied, forfeit a sum not exceeding 20/. {i) . The like penalty, in 
 addition to the forfeiture of his license, is imposed on any licensed 
 person employing an unlicensed person to engage seamen (i) . 
 
 The like penalty is also imposed on any person, not being in 
 H. M.'s ser\dce or dvdy authorized bylaw, going on board a merchant 
 vessel before her arrival in dock, or at her place of discharge, without 
 permission of her master, who is authorized to take any person so 
 
 (c) 4 Scott, X. R. 509. (A) Sect. 147. 
 
 (/) The J'angtiard, 6 Rob. 207. (?) Ibid, 
 
 iff) 17 & 18 Vict. c. 104, s. 146,
 
 462 HIKING OF SEAMEN. 
 
 Part V. offending into custody, and deliver him to a constable to be taken 
 
 before a magistrate, and dealt with according to the Act (a). Persons, 
 
 who on board a ship, within 24 hours of her arrival, shall solicit any 
 seaman to become a lodger at the house of any person letting lodgings 
 for hire, or remove his effects from the ship, except under his personal 
 direction, or without permission of the master, shall, for every such 
 offence, forfeit the sum of 5/. (b) . And by demanding or receiving 
 remuneration for the board of sailors for a longer period than is due, 
 and by neglecting to return monies or effects belonging to them, a 
 penalty of 10/. is incurred (c). And it is enacted that the word 
 seaman in the Act shall include every person (except masters, pilots, 
 and apprentices duly indentured and registered) employed or engaged 
 in any capacity on board any ship {d) . 
 
 (a) Sect. 237. Attwood v. Case, L. E. 1 (c) Sects. 235, 236. 
 Q. 13. D. 137. Id) Sect. 2. 
 
 (b) Sect. 238.
 
 EARNING AND PAYMENT OF WAGES. 463 
 
 Chap. 2. 
 
 CHAPTER II. 
 
 OF THE EARNING AND PAYMENT OF WAGES; AND HEREIN^ 
 
 Sect. 1. When the tohole Wages are to he paid, p. 463. 
 
 2. Cases in which a Part only is to he paid. — Service not wholly performed hy 
 
 reason of Death, ShipioreeJc, or abandonment of the Voyage, p. 464. 
 
 3. The Time at which Payment is to he made, p. 471. 
 
 4. Advance and Allotment Notes. — Savings' Banks for Seamen, p. 474, 
 
 5. Wages and Effects of deceased Seamen, p. 475, 
 
 [I PROPOSE in the present chapter to consider, First, the cases in 
 which the ivhole wages agreed to be given to seamen are to be paid ; 
 Secondly, the cases in which a part only is to be paid ; and Lastly, 
 the time at which the payment is to be made. All that is said in this 
 and the following chapter respecting seamen is to be understood of 
 all the officers in the ship, except the master, and of him also, if the 
 subject is not inapplicable to his situation and character, 
 
 1. When the whole Wages are to he paid. 
 
 First, it is obvious, that a seaman who has faithfully performed 
 his service on board a ship during the whole period of the intended 
 voyage, is entitled to receive the whole of the stipulated reward, if 
 no disaster has rendered his service useless or unproductive to his 
 employer. And as a seaman is exposed to the hazard of losing the 
 reward of his faithful service during a considerable period in certain 
 cases, so on the other hand the law gives him his whole wages, even 
 when he has been unable to render his service, if his inability has 
 proceeded from any hurt received in the performance of his duty, 
 or from natural sickness happening to him in the course of the 
 voyage (e) . And if a master, in violation of his contract, discharges 
 a seaman from the ship during a voyage, the seamen will be entitled] 
 
 (e) [Lawsof01eron,art. 6&7; ofWisbuy, illness incapaLle of performing his duty. 
 
 art. 19 ; of the Hanse Towns, ai't. 39 &45 
 
 same of the year 1614. tit. 14, art, 1 ; French caused by his own wilful act or default, he 
 
 Ordin. liv. 3, tit. 4. Des Loyers des Mate 
 lots, art. 11; Code de Com. art. 262 
 Chandler v. Grieves, 2 Hen. Black. 606. 
 
 and it is proved that such illness has been 
 
 shall not be entitled to wages for the time 
 during which he is by reason of such illness 
 incapable of performing his duty. See 
 
 note (a) and by Lord Mansfield in the 17 & 18 Vict. c. 104, s. 228, as to medical 
 case of Paul v. Eden, in the King's Bench, attendance, &c, in case of illness of sea- 
 Easter Term, 25 Geo. 8.] By 30 & 31 Vict. man. 
 c. 124, s, 8, where a seaman is by reason of
 
 464 "EARNING AND PAYMENT OF WAGES. 
 
 Part V, [to his full wages up to the prosperous determination of the voyage^ 
 
 deducting, if the case require it, such sum as he may in the meantime 
 
 liave earned in another vessel {a) . The French ordinance adds, that 
 in such cases the master shall not charge the owners with the pay- 
 ment {b). A seaman is to he found with provisions as long as he 
 remain on board, and is Avilling to do his duty ; if thei'c he a want of 
 suflficient provision, it is a sufficient justification for his leaving the 
 vessel, and will not deprive him of his right to his wages (c) . 
 
 Since the earlier editions of this Treatise, a case has been pre- 
 sented to the Court of Admiralty of a woman applying for wages for 
 service performed on board a ship. The claim was made for work in 
 two capacities ; one as cook and steward, the other as keeper of the 
 ship and her stores, in harbour or dock ; the claimant had acted also 
 as mariner in a great degree. After the performance of the service, 
 payment was resisted, on the ground of the sex of the applicant. The 
 learned judge who then presided in that court said, that the material 
 point for the court to look to, was the work done ; for supposing an 
 informality in the mode of hiring, still, if the work had been done, 
 and properly done, it entitled the performer to the common remunera- 
 tion for such employment {d) . 
 
 In the discussion of the cases that arose on the detention of the 
 British ships in Russia by the Emperor Paul, in the year 1800, it was 
 admitted in both courts, that in the ordinary case of an embargo, a 
 seaman hired by the month, and remaining with the vessel, has a right 
 to his Avages during the embargo, if the ship afterwards perform her 
 voyage and earn her freight {e) . The circumstances of that detention 
 were very peculiar. The cases will be more fully stated when I come 
 to the consideration of the loss of wages (/) .] 
 
 3. Cases in tvhich a Part only is to be paid. — Service not whollij 
 performed by reason of Death, Shipivreck, or abandonment of the 
 Voyage [g] . 
 
 Wngos not de- ^J ^hc law of England, as by the Marine Law, the payment of 
 
 pciuU'ut on wages was, until recently, generally dependent upon the payment of 
 
 eavnintr «>f freight : if the ship had earned its freight, the seamen who had served 
 
 ''"'^ '^' on board the ship had in like manner earned their wages Freight 
 
 was the mother of wages. 
 
 (a) [Solinetf v. The ship Exeter, 2 Rob. (</) The Jane and Matilda, Chandler, 1 
 
 261. The Beaver, 3 Rob. 92 ; Roccus Hagg. Ad. Rep. 187. 
 
 not. 43 ; Old Hanseatic Ordinance, art. {e) Beale v. Thompson, 3 Bos. & Pull. 
 
 42; Hanseatic Ordinance of 1614, tit. 3, 405, and 4 East, 546. 
 
 art. 7.] (/) Chap. 3 of this Part, sec. 2. 
 
 (i) Li V. 3, tit. 4. Loyers des Matelots, (_5r) As to claims for wages on a 2;/ffM<«(«» 
 
 art. 10; and also the Code de Com. art. me)'iiit,iiQeJEakeny. Thorn, b'Es.^.G. Hill- 
 
 270. i/ard v. Movnf, 3 C. & P. 93. TFhite v. 
 
 (c) The Castilia, Stewart, 1 Hagg. Ad. Mattison, 2 Starkie, 325. Jesse v. Boil, 
 
 Eep. 59. See the Eliza, Ireland, id. p. 186, 1 C. M. & R. 316. 
 ante, p. 132.
 
 2. WHEN PART ONLY TO BE PAID. 465 
 
 By sect. 183, no riglit to wages sliall be dependent on the earning Chap. 2. 
 of freight (h) . 
 
 [By articles of agreement, in the form usual before the recent Decisions as 
 Act {i), and containing tlie common stipulation, that '' no seaman *« divided 
 should demand or be entitled to his wages, or any part thereof, ^^^^S<^^' 
 until the arrival of the said ship at her above-mentioned port of 
 discharge and her cargo delivered;''^ it was stated that the ship 
 was bound for the ports of Madeira, any of the West India islands, 
 or Jamaica, and to return to London ; and in consideration of the 
 monthly or other wages therein mentioned, the seamen severally 
 undertook to perform the above-mentioned voyage, and the master 
 agreed with and hired them for the said voyage. The ship sailed 
 from London with a full cargo for Madeira, and delivered it there, 
 and took in a full cargo of wine ; and sailed for the West Indies. 
 Part of the wine was delivered at Dominica, and another part at 
 Kingston in Jamaica, and at this latter place the ship took in some 
 government stores for Port Antonio in Jamaica, which she delivered 
 there, and then proceeded to Martha Bray, in the same island, where 
 she delivered the remainder of the wine, and took in her cargo for 
 London ; for which place she soon afterwards sailed, but was lost on 
 the voyage home. One of the seamen, who had been hired at monthly 
 wages, brought an action, contending that the voyage was divided 
 into three distinct parts, viz., Madeira, the West Indies, and home ; 
 and that, as freight had been earned for the two first parts, he was 
 entitled to his wages up to the time of the ship's departure from 
 Martha Bray. But the court, holding that the port of discharge 
 mentioned in the articles meant London, determined that by reason 
 of the special stipulations he could recover nothing {k).'\ 
 
 The facts of the Juliana (/) were as folloAvs : William Lattimore, a 
 seaman, was hired in August, 1820, to proceed at certain wages on 
 board the Juliana from Portsmouth on a voyage to New South 
 Wales, Batavia, Bengal, and back to London. She accordingly sailed 
 with a cargo of convicts to the river Derwent in New South Wales, 
 arrived and landed them there, took on board live stock and salt pro- 
 visions, and sailed to Port Jackson, where she delivered that cargo ; 
 and then sailed to Batavia, where she took in a cargo of poultry, 
 which she partly delivered at Minto, and then sailed to Serampore, 
 
 {h) Anon. 1 Lord Raym. 639, 739 ; 12 (J) This, it must be borne in mind, is 
 
 Mod. 408 ; Ordin. of Rotterdam, art. 214 ; from the 5th ed. of this work, published in 
 
 2 Magens, 113 ; Anon. 2 Show. 283 ; Buck 1827. See the present form of agreement 
 
 V. Rawl'nson, 1 Bro, P. C. 102 ; Edioards in tlie Appendix. 
 
 V. Child, 2 Vern. 727 The rule that freight {k) lApplebyx. Dods, 8 East, 300.] But- 
 
 was the mother of wages did not apply to ton v. Thompson, 38 L. J. C. P. 225 ; L. R. 
 
 the master of a ship. King v. Glover, 4 C. P. 330. See the Hoghton, 3 Hagg. 
 
 2 New Rep. 306 ; and, therefore, where a Ad. Rep. 100, where a clause, usual in the 
 
 master engaged for a voyage at 10^. per Baltic trade, that, in case the ship should 
 
 month, continued to act as master from winter abroad, on account of the ice, the 
 
 the time when the ship sailed until she was officers and men agreed to accept half 
 
 lost with all hands, his representatives were wages, was upheld by Sir John Nicholl. 
 held entitled to recover against the owners (Z) 2 Dods. Ad. Rep. 510. See the 
 
 his wages up to the time of the loss. Sidney Cove, 2 Dods. 13. The Neptwie, 
 
 Haiokins v. Twizell, 5 E. & B. 833, 25 1 Hagg. 22. The Lady Durham, 3 ib. 
 
 L. J, Q. B. 160. 196. Sernamann v. Bawdeti, 3 Burr. 1844. 
 
 2h
 
 466 . EAKXJya AND PAYMENT OF WAGES. 
 
 Part V. where she delivered the remainder and took in sugar for England^ and 
 
 various goods for Calcutta, at which place she discharged the latter 
 
 goods and took in other articles for England. In the month of 
 December, 1821, she arrived in the Downs, Avhere, having struck on 
 the Kentish Knock, she was wrecked, and every soul on hoard 
 perished except Lattimore and another, who were picked up by a 
 fishing-hoat. It was admitted that freight to the amount of 3,000/. 
 at least had been earned, and that during the whole of the voyage 
 the seaman well and ably performed his duty ; but his claim for 
 wages was met by alleging the stipulation in the articles, "■ that no 
 officer or seamen should demand or be entitled to his wages, or any 
 part thereof, until the arrival of the ship at the above-mentioned port 
 of discharge, and her cargo delivered ;" and it was further pleaded 
 that by the above-mentioned port of discharge was meant and in- 
 tended the port of London, and that the ship was totally lost, together 
 with her cargo, on her return to, and before her arrival in London, 
 and before any part of her cargo had been delivered. 
 
 Lord Stowell, after an elaborate review of the decisions ^^pon this 
 question, and particularly that of Lord Holt, in the case of Edwards 
 v. Child [a), expressed himself as follows: "This court certainly 
 does not claim the character of a court of general equity, but it is 
 bound, by its commission and constitution, to determine the cases 
 submitted to its cognizance upon equitable principles, and according 
 to the rules of natural justice. How far a court of law would limit 
 its views of the question to the letter of the contract, and leave these 
 improvident men to find their way, in a court of equity [b), out of a 
 bargain which that court has deemed, unreasonable, when it appeared 
 in another form substantially the same, I am not enabled to pronounce. 
 There are those who might, perhaps, lament if this humble class of 
 suitors were compelled to a pilgrimage through a second court. This, 
 court is not disposed to put that burthen upon them : it Avill, as far 
 as it can, protect these illiterate and inexperienced persons against 
 their own ignorance and imprudence. And 1 confess I feel disposed 
 to do so more in the case of these articles than in the case of articles 
 and bonds ; because I think it much more probable that covenants, 
 bearing hard vipon them, should slip unnoticed into articles which 
 they execute as mere formal instruments of course, than into bonds, 
 which are instruments of rare occurrence to them, and by which their 
 curiosity would naturally be excited and alarmed. I may add, that 
 the terms in which the stipulation appears, might probably be under- 
 stood by the mariners, as they are actually understood by the courts 
 of Scotland (c), to signify ouly a postponement of the payment, not 
 a privation of the title which the law had guaranteed to them. The 
 words are sufficiently satisfied by that interpretation, and I infer from 
 the present case that the mariners so understood them ; otherwise 
 they might be charged with a want of that good faith with which they 
 
 (a) 2 Vera. 727. of law and equity are united. See Preface 
 
 {h) By the Judicature Acts law and to this Edition, 
 equity are fused, and the superior courts (c) Commentaries on the Law of Scot- 
 
 land, vol. i. p. 515.
 
 2. WHEN PART ONLY TO BE PAID. 4iQ7 
 
 have a right to be credited^ if they were now resisting a claim which Chap. 2. 
 
 they fully understood and admitted at the date of the agreement. I 
 
 reject this article of the allegation, and shall, of course, proceed upon 
 
 the summary petition ; and, if it be duly supported by proof, shall 
 
 feel myself bound by law, authority, and justice,, to pronounce for 
 
 the wages on the outward voyages." 
 
 The principles upon which this judgment proceeded have been 
 repeatedly avowed and acted upon in the Courts of the United States. 
 It is cited by Judge Story {d) and Chancellor Kent (e), with 
 approbation, as deciding '^ that, where a voyage is divided by various 
 ports of delivery, a proportional claim for wages attaches at each of 
 such ports ; and that all attempt to evade or invade that title, by 
 renunciations obtained from the mariners without any consideration, 
 by collateral bonds, or by contracts inserted in the body of the 
 shipping articles, are ineffectual and void." 
 
 [Secondly, it was determined before the passing of the repealed Where sea- 
 statutes, by which the service of seamen in merchant ships was regu- IJ^^^^^gg™' 
 lated, that a seaman, who was impressed from such a ship into the 
 royal service, was entitled to receive a proportion of his wages up to 
 the time of impressing, the ship having afterwards arrived in safety at 
 her port of discharge (/) , It has also been since decided, that he was 
 entitled to no more {g). 
 
 It was also decided (before the Merchant Shipping Acts), that a 
 seaman belonging to a privateer, who was to have a certain share of 
 prizes in lieu of wages, and who had engaged to serve full six months 
 on pain of forfeiting such share, did not lose his share of a prize 
 taken while he was in the privateer, by being afterwards impressed, 
 and then accepting the bounty, and entering on board one of his 
 Majesty's ships before the expiration of the six months [h). But 
 entering, or being impressed into the King's service, was considered 
 not to give the mariner an absolute right to his wages up to the time, 
 nor place him in a better condition as to such wages, than he would 
 be if he had remained on board the ship ; and, therefore, if the ship 
 were afterwards captured, he lost his wages in common with those 
 whom he left behind (i).] 
 
 (d) American edition of this work, p. 448. (/) Wiggins x. Ingleton, 2 TiOvdi.'R^ym. 
 " If," says Judge Stoet, " the voyage or 1211. This paragraph, it will he noticed, 
 freight be lost by the negligence, fraud, or is taken from the 5th ed. of this work, which 
 misconduct of the owner or master, or volun- was j)ublished in 1827; see now sects. 183, 
 tarily abandoned by them ; if the owner 214, 215 of M. S. Act, 1854. 
 
 have contracted for freight upon terms or (g) Clements v. Mayhorn, in the King's 
 
 contingencies differing from the general Bench, Trinity Term, 24 Geo. 3. 
 
 rules of maritime law ; or if he have char- {h) Paul v. Eden, in the King's Bench, 
 
 tared his ship to take a freight at a foreign Easter Term, 25 Geo. 3. 
 
 port, and none is to be earned on the out- ( i ) Anon, 2 Campb. 320, note. On the 
 
 ward voyage; in all these cases the mariners subject of impressment, see Foster's Crown 
 
 are entitled to wages, notwithstanding no Law, 154. Bex v. Tubbs, Covvp. 517. Exp. 
 
 freight has been earned." The Saratoga, Fox, 5 T. R. 276. Rex v. Douglas, 5 East, 
 
 2 Gallison (American Kep.) 175. 477. Exp. Lansdoione, 5 East, 38. Exp. 
 
 (e) Kent's Commentaries, Edin. edit. 188. Chalacombe, 13 East, 550, note. Burrow's 
 SeeJessev. i2oj/, 4Tyrw. G26; 1 CM. &R. case, 14 East, 346. Exp. Young, 9 East, 
 316. Button v. Thompson, 38 L. J. C. P. 466. And see 13 Geo. 2, c. 17; 50 Geo. 3, 
 225; L. K. 4C. P. 330. 
 
 2 H 3
 
 468 EAE?fING AND TATMENT OF WAGES. 
 
 Part V. By sect. 214< seamen are allowed to leave their ships in order to 
 — — enter the navy, and sect. 215 provides for the payment of propor- 
 
 ente7s^roval tionate wages in such a case and enacts how they shall he paid. 
 
 lla^7. ' If it becomes necessary, in consequence o£ any seaman so quitting 
 
 his ship, for the safety and proper navigation of the ship, to engage a 
 substitute at higher wages, the difference is to be paid to the master 
 or purser of the ship Avhich the seaman has quitted, by the Accountant- 
 General of the Navy, upon the certificate of the Registrar of the High 
 Court of Admiralty in England {a). 
 
 Where he dies. [If a seaman falls sick and dies during the voyage, the laws of 
 Olcron (b), of Wisbuy (c) and of the Hanse Towns {d), direct that 
 his wages shall be paid to his heirs, in general words, without distinc- 
 tion as to the terms upon which he was hired : and it is not clear 
 whether the payment thus directed, is to be understood of a sum pro- 
 portionate to the time of his service, or of the whole sum that would 
 have been earned if he had lived to the end of the voyage. The 
 French ordinance distinguishes between the case of a hiring by the 
 month, and a hiring for the voyage ; and in the first case directs the 
 payment of wages up to the day of the death of the seaman : in the 
 last case, it directs the payment of half the stipulated sum, if a sea- 
 man dies on the voyage outward, and the whole if he dies on the 
 voyage homeward {e) . A similar rule has been laid down in the case 
 of hiring by the voyage, in the ordinance of the Emperor Charles the 
 Fifth (/), which regulated the commerce of the Low Countries ; and 
 Cleirac and Yalin {(/) say, that the same rule was established by the 
 Consolato del Mare. 
 
 There is no general decision on this subject in our law books ; but 
 the legislature appears to have considered that some wages might be 
 owing to seamen, who died in the course of a voyage {h) ; and in the 
 case which I am about to quote it seems to have been admitted, 
 that the representatives of a seaman hired by the month would be 
 entitled to a proportion of wages to the time of his death. The facts 
 of the case referred to were very peculiar, and the decision turned 
 upon them. Before the passing of the statute (i), which limits the 
 wages to be given to persons for navigating a ship back from the 
 West Indies to this country, one Cutter was hired as second mate on 
 a voyage from Jamaica to Liverpool ; and at Jamaica the master sub- 
 scribed and delivered to him the following note : — " Ten days after 
 the ship G. P., myself master, arrives at Liverpool, I promise to pay 
 Mr. T. Cutter the sum of thirty guineas, provided he proceeds, con- 
 tinues, and does his duty as second mate in the said ship, from hence 
 to the port of Liverpool. Kingston, July 31st, 1793.'^ The ship] 
 
 c. 108; 5 & 6 Will. 4. c. 21; lf)& 17 Vict. the wages if the manner dies at the out- 
 
 c. 69, and 16 & 17 Vict. c. 73. ward port, art. 265.] 
 
 (a) Sect. 217, 219. (/) [Cleirac on Art. 7 of laws of Olerou.] 
 
 {b) [Art. 7.] (ff) [On the French Ordinance, uhi 
 
 (c) [Art. 19.] siij>ra.^ 
 
 (d) [Art. 45.] (A) [37 Geo. 3, c. 73, s. 7; 6 Geo. 4, 
 
 (e) [Liv. 3, tit. 4, Loi/ers des Mafelots, c. 107, s. 15] ; 17 & 18 Vict. c. 104, ss. 194 
 art. 13 and 14. The same rule is laid down — 202. 
 
 in the Code de Com., which also gives half (?) [37 Geo. 3, s. 73c. 3.]
 
 2. WHEN PAET ONLY TO BE PAID. 469 
 
 [sailed from Kingston on the 2ncl of August, and arrived at Liverpool Chap. 2. 
 on the 9th of October. Cutter went on board the 31st of July, sailed 
 in the ship, and proceeded, continued, and did his duty as second 
 mate until his death, which happened on the 20th of September. It 
 was proved that the wages usually paid to a second mate of a ship on 
 such a voyage, il: hired by the month out and home, were 4/. per 
 month ; that when seamen were shipped by the run from Jamaica to 
 Englr.nd, a gross sum was usually given ; and that the usual length 
 of a voyage from Jamaica to Liverpool was about eight weeks. The 
 executrix of Cutter brought an action against the master, and it was 
 contended on her behalf, that she ought to recover a proportion of the 
 wages for that part of the voyage that he lived, and served on board 
 the ship. The Court of King^s Bench, before which this question 
 was brought for decision, directed inquiry to be made as to the usage 
 among merchants, &c., in cases of this kind ; but no satisfactory in- 
 formation being obtained as to the usage, although such notes had 
 been often given, the court, upon consideration of the particular 
 terms of the note, and of the great excess of the sum to be paid to 
 Cutter, if he had performed the whole voyage according to those 
 terms, above the usual rate of wages upon a monthly hiring, decided 
 that nothiug was payable for the partial service ; declaring, at the 
 same time, that if the plaintiif could have proved a usage to pay a 
 proportional sum in similar cases, their decision would have been 
 conformable to the usage [k] . 
 
 In a subsequent case also, it was taken for granted, that some Avages 
 were due to the mate of a West India ship, who had died on the home- 
 ward voyage. The master had, in pursuance of the directions of the 
 statutes before -mentioned {I), paid to the receiver of the sixpenny 
 duty for Greenwich Hospital the sum of 9/. as the full amount of the 
 wages due. The administratrix of the deceased contending that more 
 than 9/. Avas due, brought an action against the master, Avho insisted 
 that as he had accounted upon oath according to the directions of the 
 statute, the amount of the sum due could not be questioned in such an 
 action, but he must be sued for the penalty given by the statute, if 
 his account was false. But the Chief Justice of the Court of Common 
 Pleas (Sir James Mansfield), before whom the case was tried, and 
 afterwards the whole court, held that the statute did not deprive the 
 administratrix of her right to sue the master for all that was justly 
 due beyond the sum paid to the officer, and as the jury had found 25/. 
 to be due, she was allowed to recover 16Z. [m) .] 
 
 Where the service of the seamen terminates by the loss of the ship. Where shiji 
 and he has exerted himself to the utmost to save the ship and cargo }°^^ °^ seaniau 
 (sect. 183), or by his being left on shore by reason of inability, &c., fj-^jj^ iuabUity 
 to proceed [n) on the voyage, he is entitled to wages for the time of to proceed. 
 service, but not for any further period (sects. 185, 182). As to the 
 
 {k) [ Cutter V. Potvell, 6 T. Rep. K. B. 320.] {m) lArmstrong v. Smith, 1 Bos. & Pull. 
 
 See RoUns v. Pou)ei; 27 L. J. C. P. 257. N. R. 299.] 
 
 (0 [37 Geo. 3, c. 73, s. 7, and 6 Geo. 4, («) See sect. 205. 
 c. 107, s. 15.]
 
 470 EARNING AND PAYMENT OP WAGES. 
 
 Part V. recovery of the wages of a seaman lost with his ship^ sec 25 & 26 
 
 Vict, c."^ 63, s. 21. 
 
 [lu the case of shipwreck it is the duty of the seamen to exert 
 themselves to the utmost to save as much as possible of the vessel 
 and cargo;] and if, in so doing, they become disabled, they have there- 
 fore no ground of action against their owners («) . Before the Mer- 
 chant Shipping Act, 1854, [if the cargo was saved, and a proportion 
 of the freight paid by the merchant in respect thereof, it seems upon 
 principle that the seamen Avere also entitled to a proportion of their 
 wages ; and this is expressly directed by the French ordinance {b) . 
 And for their labour in saving the cargo, or the remains of the ship, 
 they, as well as other persons, may be entitled to a recompense by 
 way of salvage. By the laws of Oleron (c), if, in the case of ship- 
 wreck, " the seamen preserve a part of the ship and lading, the master 
 shall allow them a reasonable consideration to carry them home to 
 their own country; and in case they save enough to enable the 
 master to do this, he may lawfully pledge to some honest persons 
 such part thereof as may be sufficient for the occasion.^' By the laws 
 ofWisbuy {d), ''the mariners are bound to save and preserve the 
 merchandise to the utmost of their power : and, whilst they do so {ce 
 faisant, according to the French translation), ought to be paid their 
 wages, otherwise not. ^•' By the Hanseatic ordinance (e), "if a ship 
 happens to be cast aAvay, the mariners are obliged to save as much as 
 in them lies, and the master ought to requite them for their pains to 
 their content, and convey them at his own charge to their dwelling- 
 places; but if the mariners refuse to assist the master, in such case 
 they shall have neither reward nor wages paid them.^' It is not quite 
 clear, from the language of these ancient ordinances, whether the 
 payment directed to be made to seamen on those melancholy occasions, 
 is to be a reward only for their labour in the salvage, or as recompense 
 for their former services in the ship. But Cleirae, in his commentary 
 on the laws of Oleron (/), says, that by an ordinance of Philip the 
 Second of Spain, made in the year 1563 {g), it is ordained, that the 
 seamen shall save as much as they can from shipwreck, and in that 
 case the master is bound to pay them their wages, and to give them 
 a further reward for their labour out of the goods. And the Han- 
 seatic ordinance of the year 1614 (//) expressly directs, that if so 
 much of the ship be saved as equals the value of the wages of the 
 seamen, they shall be paid their whole Avages. In like manner, 
 the ordinance of Kotterdara (i) and the French ordinance {k) also] 
 
 (rt) DIjhi V. Eaiiie, 8 L. T. Ex. 111. (e) [Art. U-l 
 
 {b) Liv. 8, tit. 4, Loii>^rs des Matelols, (/) [Art. 3.] 
 
 art. 9. By M. S. Act, 1851, the right to \g) [Tit. Average, art. 12. J 
 
 •wages is now not drpendent on the earning (A) [Tit. 9, art. 5.] 
 
 of freight, see ante, p. 465. \i) [Art. 219 ; 2 JIagens, 114.] 
 
 (p) [Art. 3.] {k) [Liv. 3, tit. 4, Layers des Matehis, 
 
 (rf) [Art. 15, According to the transla* art. 9], and Yaliu thereon ; and see Code de 
 
 tion in Malyne.] Com. art. 259.
 
 o. TIME WEEN PAYMENT TO BE MADE. 471 
 
 [expressly direct the payment of wages out of tlie relicts and materials Chap. 2. 
 of the ship (/) . 
 
 If, after the hiring of seamen, the owners of a ship do not think Where voyage 
 proper to send her on the intended voyage^ the seamen are to be paid abandoned. 
 for the time during which they may have been employed on board the 
 ship (m) . If they sustain any special damage by breaking off the 
 contract, it seems reasonable also that they should recover such 
 damage by an action upon the agreement.] And. it is enacted, that 
 any seaman who, having signed an agreement, is discharged before 
 the commencement of the voyage, or before one month's wages are 
 earned, without fault on his part justifying such discharge, and Avith- 
 out his consent, shall be entitled to receive from the master or owner, 
 in addition to any wages he may have earned, due compensation not 
 exceeding one month's wages, and to be recovered as wages, for the 
 damage thereby caused to him {n) . [The French ordinance also directs 
 the payment of wages for the time employed in equipping the ship in 
 two other cases (o), which I do not find mentioned in the more ancient 
 sea laws ; these are, the prohibition of commerce, by the government 
 of the country to which the ship belongs, with the country to which it 
 is destined (which must always take place if a war happens between 
 the two countries), and an embargo imposed in the lading port. The 
 latter case does not in general dissolve the contract between the 
 owners and the merchant by the law either of France or England, as 
 I have already mentioned {p), yet it may be reasonable on such an 
 occasion to discharge the greater part of the mariners, Avho may 
 readily find in other ships an employment equally beneficial to them- 
 selves, and are, therefore, not likely to sustain or recover special 
 damage to any considerable amount by the non-performance of the 
 contract made with them. But if they continue with the ship, they 
 will, if hired by the month, be entitled to their wages during the 
 period of detention (q) ,] 
 
 3. The time at lohich Payment is to be made. 
 
 We have seen that by 17 & 18 Vict. c. 104-, the master is bound 
 within 24 hours, before paying off or discharging any seaman, to 
 deliver to him or to the superintendent of the mercantile marine 
 office, before whom he is discharged, a full account of his wages, and 
 
 (J) See the Neptune, 1 Hagg. 227. Sol- iu ainlty with this countiy, and the ship 
 
 Ihigworth v. Palmer, 4 Ex. 267. was afterwards employed by cue of the 
 
 (««) [ Wells V. Osman, 2 Lord Eayin. belligerent parties to accompany some steam 
 
 1044.] The Cif// of London, 1 W. Rob. p. 31. rams, and it was held the seaman was not 
 
 (m) 17 & 18 Vict. c. 101, s. 167. bound to serve. 
 
 (o) [Liv. 3, tit. 4, Lo>/ers des Mcdelols, (q) \_Beale v. Tliompson, 3 Bos. & Pull. 
 
 art. 4 & 5 ; Code de Com. art. 253.] 405] ; see Button v. Thompson, 38 L. J. 
 
 (jj) Ante, p. 439. See Burton v. Pin- C. P. 225; L. K. 4 C. P. 330. [In the case 
 
 kerton, 36 L. J. Ex. 137; L. E. 2 Ex. 340, of arrest during the voyage, the Code de Com. 
 
 where a seaman was engaged before the gives to seamen hired by the month half 
 
 commencement of a war between two states their wages during the detention, art. 254.]
 
 472 EAEXINCi AND TAYMENT OF WAGES. 
 
 Part V. of all cleductious to be made therefrom ; and that, iu the case of 
 foreign-going ships, all seamen discharged in the U. K. must be 
 discharged and receive their wages in the presence of a superin- 
 tendent of a mercantile marine office (a). 
 
 " The master or owner shall pay to every seaman his wages, within 
 the respective periods following ; that is to say, iu the case of a home- 
 trade ship the wages shall be paid within two days after the termi- 
 nation of the agreement, or at the time when the seamau shall be 
 discharged, whichever shall first happen, and iu the case of all other 
 ships, except ships employed in the Southern Whale Fishery, or on 
 voyages for which seamen, by the terms of their agreement, are 
 compensated by shares in the profit of the adventure, the wages shall 
 be paid at the latest within three days after the cargo shall have been 
 delivered, or within five days after the seaman's discharge, whichever 
 shall first happen ; and in all eases, the seaman shall, at the time of 
 his discharge, be entitled to be paid on account a sum equal to one- 
 fourth part of the estimated balance due to him ; and if any master 
 or owner shall neglect or refuse to make payment in the manner 
 required, without sufficient cause, he shall for every such neglect or 
 refusal pay to the seamen the amount of two days' pay for each day, 
 not exceeding ten days, during which payment shall, without sufficient 
 cause, be delayed beyond the respective periods aforesaid, and such 
 sum shall be recoverable as wages {b). 
 
 The payment will be valid, notwithstanding any previous assign- 
 ment by the seamen of his wages, or attachment or incumbrance 
 thereon, and no assignment of wages or of salvage, made prior to the 
 accruing thereof, will be binding upon, and no authority for their 
 receipt irrevocable by, the party making it ; and no debt exceeding 
 in amount 5^., incurred by any seaman after he has engaged to serve, 
 will be recoverable until the service agreed for is concluded (c). 
 
 When a seaman is left on shore at any place abroad, under a 
 certificate of his not being in a condition to proceed on the voyage, 
 the master is to deliver to certain functionaries or merchants, 
 (mentioned in the Act) a just and true account of the wages due, 
 and to pay the same to the seaman, in money or by a bill, di-awn upon 
 the owner of his ship ; and if by a bill, then such functionary or 
 merchants are authorized and required by certificate endorsed on 
 the bill, to testify that it is drawn according to the Act, for 
 money due on account of wages of a seamau, or to that effect. The 
 penalty upon the master for a refusal or neglect to give such account, 
 and to pay the amount thereof, is 10/., and for giving a false account, 
 20/. {(l) . 
 
 (a) Sect. 171, ante, p. 456. section shall, whenever practicable, be made 
 
 {b) Sect. 187. Fraser v. Mutton, 2 C. B. in money and not by bill, and when by bill 
 
 (n.s.) 512. drawn by the master, the owner shall be 
 
 (c) Sects. 233, 234. liable to pay its amount to the holder or 
 
 {d) Sect. 209. The Rajah of Cochin, endorsee thereof, and it shall not be neces- 
 
 Swa. 473. By the M. S. Act Amendment sary in any proceeding to prove the master's 
 
 Act, 1862, 25 &, 26 Vict. 63, s. 19, the authority to draw it, and any bill purportinsr 
 
 payment of seamen's wages under this to be drawn in pursuance of the said section
 
 8. TIME WHEN PAYMENT TO BE MADE. 473 
 
 [Policy requires that the wages o£ seauieii should not be paid to Chap. 2. 
 
 them iu foreign countries, as well to prevent desertion, as to preserve, 
 
 for the benefit of their families^ the money that might otherwise be 
 spent in idleness and debauchery. The legislature of this country has 
 enacted, by a general law, " that no master or owner of any merchant 
 ship shall pay or advance, or cause to be paid or advanced, to any 
 seaman or mariner, during the time he shall be in parts beyond the 
 seas, any money or efi'ects on account of wages exceeding one moiety 
 of the wages which shall be due at the time of such payment, until 
 such ship or vessel shall return to Great Britain or Ireland, or the 
 jjlantations, or to some other of his Majesty's dominions whereto they 
 belong, and from whence they were first fitted out ; and if any such 
 master or owner of such merchant ship or vessel shall pay or advance, 
 or cause to be paid or advanced, any wages to any seaman or mariner 
 above the said moiety, such master or owner shall forfeit and pay 
 double the money he shall so pay or advance, to be recovered in the 
 High Court of Admiralty by any person who shall first discover and 
 inform of the same (e) . The French ordinance, so often quoted, has 
 made no provision on this subject; but, according to Pothier, the 
 defect was supplied by subsequent ordinances in that country, which 
 prohibited the payment of wages in places to which the ship did not 
 belong, without the consent of the French consul in a foreign country, 
 and in France of the officers of the classes (/) . The Code de Com- 
 merce does not appear to contain any regulation on this subject. 
 The ordinance of Rotterdam {g) having enacted, " That the full wages 
 of the ship's company shall always be deemed to be earned, whether 
 one or more complete voyages have been made in foreign parts, even 
 though the ship should afterwards happen to be lost,'^ adds, " that 
 the master shall be obliged to pay to his people every time, if they 
 require it, at least the half; but that when any dispute arises, they 
 shall not go to law in foreign parts, nor give one another any trouble, 
 on forfeiture of what wages or monthly pay shall remain unpaid." 
 By the articles of agreement for service in a Dutch ship, which were 
 proved in evidence at the trial of an action brought in this country 
 by a seaman against the master for wages {h), it was stipulated, that 
 in case one or more complete voyages should be made out of the 
 country, the master should at every second place of delivery secure 
 to the seamen two-thirds of their wages by an order on his purser or] 
 
 and to be endorsed as theveln is required, (/) [Pothier, Loyers dcs Matclots, sects, 
 
 shall, if produced out of the custody of the 2, 3.] 
 
 Board of Trade or of the Registrar General ((/) [2 Magens, 113, 114.] 
 
 of Seamen, or of any superintendent of any (h) \_Gemar v. Meyer, 2 Hen. Black. 603. 
 
 mercantile marine oflBce, be received as evi- In consequence of the concluding clause of 
 
 dence ; and any endorsement on such bill, these articles, it was held that the action 
 
 purporting to be made in pursuance of such could not be maintained, although the vessel 
 
 section, and to be signed by one of those had been seized by an English ship, brought 
 
 functionaries, shall be received iu evidence into this country, aud sold here, under the 
 
 and deemed prima facie evidence of the authority of the government; the master 
 
 facts stated in it. and crew uot being made prisoners. Sec 
 
 (e) [8 Geo. 1, c. 24, s. 7. This statute was also Johnson v. Machielsne, 3 Campb. 44.] 
 made perpetual by 2 Geo. 2, c. 28, s. 7.]
 
 474 EAENING ATsD PAYMENT OF WAGES. 
 
 Part V. [correspond cut at Eottcrdam ; but that noue of tlic seamen should 
 institute any suit against the master in foreign countries. By the 
 articles of agreement made at Altoua for service in a Danish ship, 
 "which "svere proved in like manner at another trial (a) , it "v\as stipu- 
 lated that no one should demand any money, while abroad, from the 
 master, but every one should content himself "with the money received 
 upon hand, until the completion of the voyage to the satisfaction of 
 the master and his 0"wners, and until such time as the ship should 
 have arrived at Altona ; and it should at all times be at the option of 
 the master to give them money "while abroad, or not {b) . 
 
 Some cases relating to foreign seamen Avill be mentioned here- 
 after (c-) .] 
 
 4. Advance and Allotment Notes. — Savings' Banks for Seamen. 
 
 By the Mercantile Marine Act, 13 & 14 Vict. c. 93 (now repealed), 
 s. 58, it "was provided that no advance note should be made except in 
 forms sanctioned by the Board of Trade, and no advance of "wages 
 or advance note given except to the seaman himself, nor unless the 
 agreement contained a stipulation for the same, and for the amount 
 thereof, nor except in the presence of the shipping master, if the 
 agreement "were signed before a shipping master. 
 
 Advances made and advance notes given contrary to these regula- 
 tions "were not to operate as a discharge of "\,^ages (d) . 
 
 These provisions, and some others in the ^Mercantile ]\Iarine 
 Amendment Act, 14 & 15 Vict. c. 96, s. 17 (no"w repealed), on the 
 same subject, have been omitted from the 17 & 18 Yict. c. 104, 
 The Merchant Shipping Act, 1854-. 
 
 And it is by sect. 168 of that Act enacted that all stipulations for 
 the allotment of any part of the "s\'ages of a seaman during his absence 
 shall be inserted in the agreement, and shall state the amounts and 
 times of the payments to be made, and shall be in forms sanctioned 
 by the Board of Trade. 
 
 Allotment notes, the drawing of which has been authorized by the 
 OAvner or his agent in favour of the wife, father, mother, grandfather, 
 grandmother, child, grandchild, brother or sister of any seaman, may 
 be sued upon by the allottee in the county court, or in the summary 
 manner provided by the Act for the recovery by seamen of wages not 
 
 (a) [jffK?Zev.lZe(7wa//, at Guildhall, coram ditiou of a note, by which the master 
 
 Le Blanc, J. Sitt. p. Mich. Term, 1801.] agreed to pay, ten days after the ship 
 
 (6) [Bv the law of America, a seaman is sailed, 61. to any person who should advance 
 
 entitled to receive one-third of his wages 6/. to R. H., a mariner, provided he sailed 
 
 due to him at every port where the ship in the ship, was held by the Court of 
 
 unlades, and delivers her cargo before the Common Pleas, Willes, J. diss., to be 
 
 voyage is ended, niJcss the contrary is ex- satisfied by an advance to E. H. of 3/. os. 
 
 pressly stipulated in the contract. Acts of in cash, and 21. 15s. worth of wearing 
 
 Congress of 1790, c. 29, s. 6.] apparel. M'Kmie v. Joynson, 5 C. B, (n.s.) 
 
 (c) Post, c. 4, s. 1. 218; 28 L. J. C. P. 133. 
 
 {d) 13 & 14 Vict. c. 93, s. 60. The cou- 
 
 i
 
 5. WAGES, &C., OP DECEASED SEAMEN. 475 
 
 exceeding 50/. ; and the seaman \Yill be presumed not to have for- Chap. 2. 
 feited and to he duly earning hiswages^ unless the contrary he shown 
 by evidence of the description mentioned in this section of the Act, 
 or other evidence satisfactory in its ahsohite discretion to the 
 court (e). 
 
 But a -wife M'ho deserts her chihlren, or becomes undeserving of 
 support from her husband, forfeits all right to payments under any 
 allotment of his Avages which has been made in her favour (/) . 
 
 The Act also contains provisions for facilitating the remittance of 
 wages to the relatives of seamen or other persons, by means of money 
 orders, if the Board of Trade so direct, issued by the superintendents 
 of mercantile marine offices ; for the establishment of savings banks 
 for seamen {g) ; and for charging upon the wages of absent seamen 
 such relief as may be given out of poor rates to their families (A) . 
 
 Provision is also made, in the case of a ship not returning at once 
 to the U. K., for payment of the wages of seamen who have died, to 
 the British consular officer, or officer of customs, should they require 
 it ; or if not, for their payment by the master Avithin 48 hours after 
 his arrival at his port of destination in the U. K. to the superinten- 
 dent of the mercantile marine office there, and for the rendering to 
 them a complete account of the effects, money, and wages of any 
 such seaman, in which no deductions shall be allowed but such as 
 are verified by entries in an official log-book, or by such other 
 vouchers as may reasonably be required [i] . 
 
 5. Wages and Effects of deceased Seamen. 
 
 Wages and effects of seamen dying at home, of whatever amount, 
 are to be paid and delivered to the superintendent of the mercantile 
 marine office of the port of discharge, or to the Board of Trade, or 
 as it directs (k). 
 
 If any seaman or apprentice as last aforesaid, or if any seaman or 
 apprentice who within the six months preceding his death has be- 
 longed to a British ship (25 & 26 Vict. c. 63, s. 20), dies abroad, the 
 officers of customs and consuls are to take charge of his effects, and 
 sell them if they think fit and remit to her Majesty's Paymaster 
 General, and render such accounts thereof and at such times as the 
 Board of Trade shall direct and require (/). 
 
 A large discretion is given to the Board of Trade as to the payment 
 of wages and delivery of effects to persons claiming nnder Avills of 
 seamen, unless such wills are in writing, and made and attested in the 
 manner and by the persons prescribed by the Act ; and whenever any 
 claim under a will is rejected on this ground, the wages and effects 
 of the deceased are to be dealt with as if no will had been made (m) . 
 
 (e) Sect. 169. (0 Sect. 195. 
 
 (/) Ibid. (k) Sect. 198. 
 
 (g) Sect. 177. (l) Sect. 197. 
 
 (A) Sect. 192. (mi) Sect. 200.
 
 4i76 EARNING AND PAYMENT OP WAGES. 
 
 PaiVy. Creditors of a deceased seaman are not to obtain a right to claim 
 
 from the Board of Trade his wages and effects by taking out letters 
 of administration, or by virtue of confirmation in Scotland as executor 
 creditor, nor by any means -whatever, if the debt occurred more than 
 three years before the demand is made, or is not claimed within two 
 years after the death of the deceased. The steps to be taken by a 
 creditor for obtaining payment of his debt are prescribed. The Board 
 of Trade is to have power to require full proof of the debt, with 
 vouchers, and to disallow the claim if not established. It may also 
 delay the investigation of any demand made by a creditor for a year, 
 in order to give legatees and relations the opportunity of disputing 
 the claim. And if the board pays to a legatee or relation, the creditor 
 shall have the same rights and remedies against such person, as if he 
 or she had received the same as the legal personal representative of 
 the deceased (a). The 25 & 26 Viet. e. 63. ss. 21 & 22, contains 
 further regulations for the recovery of the wages of seamen and 
 apprentices lost with their ships, and for the relief of seamen found 
 in distress abroad, for which the reader is referred to the Act in the 
 appendix. 
 
 (a) Sect. 201. 
 
 i
 
 OF THE LOSS AND FOEPEITUEE OF WAGES, 477 
 
 Chap. 3. 
 
 CHAPTER III. 
 
 OF THE LOSS AND FORFEITURE OF WAGES j AND HEREIN, 
 
 Sects. 1. Wages generally not payable unless Voyage performed, p. 477. 
 
 2. Of the Wages payahle in Cases of Capture and Recapture, p. 478. 
 
 3. Of forfeiture of Wages hy Desertion, p. 481. 
 
 4. Forfeiture for wilful neglect of duty — Refusing to assist the 3Iaster in defend- 
 
 ing the Ship against Pirates, p. 487. 
 
 5. In case of Embezzlement by the Mariners, p. 487. 
 
 [The wages o£ seamen, whether hired by the month or for the voyage, 
 are sometimes lost without any fault on their part j and sometimes 
 forfeited by their misconduct, 
 
 1 . Wages generally not payable unless Voyage performed. 
 
 In order to stimulate the zeal and attention of this class of persons, 
 who are often engaged in very perilous services, the policy of all 
 maritime states has made the payment of their wages to depend 
 generally on the successful termination of the voyage {b).'] Before 
 the Merchant Shipping Act, 1854, s. 185, [if in the course of the 
 voyage a total loss or capture of the ship took place, the seamen lost 
 their wages. The wages are not lost by the hypothecation of the 
 ship, nor even by the sale of it, unless the sale be made under the 
 authority of a competent court ; and they are preferred to the claim 
 of the holder of any hypothecation bond (c).] 
 
 A distinction is also made between those accidents by which 
 voyages may be interrupted and the interests of mariners affected as 
 dependant on their successful termination and other causes arising 
 from the acts of the owners or masters, and it was held accordingly 
 by Sir Christophkr Robinson, that the condemnation of a vessel for 
 illegal trading on the part of the master, to which the mariners were 
 not parties, did not work a forfeiture of wages, or bar the mariners' 
 action against the owners {d). But where a mariner was obliged to 
 leave his ship in the course of the voyage by the authority of the 
 British Consul, and sent luider 7 & 8 Vict. c. 112, s. 60, to England 
 as a witness upon the trial of a person, for an offence committed on 
 the high seas, it was held that the contract between him and his 
 
 (i) [MoUoy.book 2, chap. 3, sect. 10; 1 (c) [^Sydney Cove, 2 Dods. Ad. Eep. 11; 
 
 Sid. 179 ; Abernethy v. Landale, Doug. Madon?ia Ifldra, 1 Dods. 37] ; Lady Ihtr- 
 
 539 ; French Ordin. liv. 3, tit. 4, Des ham, 3 Hagg. 196. See post, Part VI., 
 
 Loyers des Matelots, art 8 ; Code de Com. Chap. 3. 
 
 art. 258] ; but see ante, p. 464, and 17 & 18 (d) The Malta, 2 Hagg. 158, 
 Vict. c. 104, s. 183 ; ante, p. 465.
 
 478 or THE LOSS and foefeituee of wages. 
 
 Part V. employers was dissolved, and that lie could not recover any wages 
 for the period subsequent to the time when he was sent to Eng- 
 land (a). 
 
 As to divided voyages, see ante, p. 4G5 (b). 
 
 2. Of the Wages payable in cases of Capture and Recapture. 
 
 [In some foreign countries, where ransom is not contrary to law, 
 the seamen belonging to a ship captured and ransomed are bound to 
 contribute a portion of their wages towards the ransom by way of 
 general average (<?). This point is in itself of no importance in this 
 country, because ransom is prohibited by our law {d) ; but the pay- 
 ment of salvage upon recapture is analogous to the payment of ransom, 
 and was so considered by Lord Stowell in a case in the Court of 
 Admiralty. In an action brought for the wages of a seaman after a 
 capture and ransom of the ship, and which Avas tried before Chief 
 Justice Holt, the Chief Justice is reported to have decided that the 
 seaman was entitled to nothing, he being unable to prove that by the 
 custom of merchants he was entitled pro rata, as was insisted on his 
 behalf {e). But it seems to be the better opinion, that in the case of 
 capture and recapture, if the ship perform her voyage and earn her 
 freight, a mariner who has not been separated from her, is entitled to 
 his wages upon the footing of the original contract (/), subject perhaps 
 to a proportionate salvage. In conformity to this opinion, at the 
 trial of a cause before Lord Eldox, when his lordship presided in the 
 Court of Common Pleas, a seaman recovered his whole wages after 
 capture and recapture of the ship {(/). The owners did not insist 
 upon any deduction as contribution to the salvage, but put their 
 defence on another ground, which they failed to establish. In 
 another ease, a mariner, who had been hired for a voyage from New- 
 castle to London and back, at a certain sum, and was captured on 
 board two days after the ship's departure, and taken out and sent to] 
 
 (a) Melville v. Be Wolf, 4 E. & B. 844-, 1827. Sec 27 & 28 Vict. c. 25, ante, p. 16, 
 
 24 L. J. Q. B. 200. The defendants paid {n) the present Act for resnilating naval 
 
 money into court covering the plaintiff's prize of war ; and ante, p. 20. 
 
 demand for wages dnring the time that he {d) This, it must he home in mind, is 
 
 had served on hoard ship. taken from the 5th cd. of this work, pub- 
 
 (6) [Je/-na»ia>»»v.-B«)('rfc», 3Burr. 1844.] lished in 1827; see now as to ransoming 
 
 (c) See post, Part VI. Chap. 1, s. 11; prizes, ante, p. 20. 
 
 [the Friends, 4 Bob. 143. The Prize Acts (e) [^Chandler v. Meade, mentioned at the 
 
 do not mention the freight ; they only end cf the case of Wiggins v. Ingleton, 2 
 
 direct a portion of the value of the ships, Lord Baym. 1211.] As to wages payable 
 
 vessels, boats, and goods restored, to be where the ship is lost, see s. 185. Perhaps 
 
 paid as salvage. But as the goods, if taken capture of a ship is a loss of her within 
 
 to the place of destination, are valued this section. 
 
 there, the freight is of course included in the (/) MoUoy, book 2, chap. 4, sect. 14, as 
 
 valuation, and so the freighter may pay to freight, which depends upon the same 
 
 salvage upon it ; in one case, an eighth of principle. But see per Etbe, Cli. J., in 
 
 the freight was ordered to be deducted Curling v. Long, 1 Bos. & Pull. 637.] 
 
 betweenthc owner and freighter. The (g) IBergstromv. Mills,3Esi^. N. F. C. 
 
 Sacehorse, 3 Rob. lOl.^ This note is taken 36;] Belamainer v. Winteringliam , 4 
 
 from the 5th ed. of this work, published in Campb. 186.
 
 2. WHiiEE CAPTURE X^D EECAPTUEE. 479 
 
 [France, instituted a suit in the Court of Admiralty for wages ; the Chap. 3. 
 
 ship had been retaken, carried to the place of destination, and per- 
 
 formed her voyage ; the owner, however, had been obliged to hire 
 another person in London to return to Newcastle with the ship in 
 the place of the claimant. Under these circumstances Lord Stowell 
 held, that the claimant was not entitled to anything ; but it seems 
 from the language of the report, that if he had remained on board, 
 his interest would have been thought to have revived upon the recap- 
 tiu'e (h). 
 
 In a case before Lord Kexyox, the master of a vessel, which had 
 been seized and restored, claimed his wages for the period of deten- 
 tion, although during that time he had been separated from her, she 
 having afterwards earned her freight. The wages for the voyage, 
 exclusive of that period, were paid without dispute ; and the defen- 
 dant is reported to have acquiesced under a verdict given against him 
 for the further sum, by reason of a strong opinion expressed by his 
 lordship at the trial in favour of the claim (i) . 
 
 The ground of decision in this case was fully discussed and con- 
 sidered, on the occasion of the seizure and detention of several 
 British ships in Kussia, by the Emperor Paul, in the year 1800. I 
 allude to the case of BeaJe v. Thompson, which has been incidental! v 
 mentioned before. Beale, an Englishman, was hired to serve as a 
 seaman in a British ship, called the Aqiiilon, Avhereof Thompson was 
 owner, at monthly wages, for a voyage from Hull to Petersburgh, 
 and from thence to London; and signed articles in the usual form. 
 The ship went out to Petersburgh, in ballast, to bring a cargo to 
 London; and the freight was to be paid by the ton. On the fifth of 
 November, ] 800, which was soon after this vessel arrived at Peters- 
 burgh, the Emperor commanded an embargo to be laid on all English 
 ships in the ports of his empire, until a supposed convention relating 
 to the island of ]Malta should be fulfilled. To enforce this order, 
 guards were stationed along the shore to prevent the crews from 
 quitting their ships. On the tenth of the same month they were 
 taken from their ships by a Russian guard ; such of the seamen as 
 were subjects of other countries were liberated at the request of their 
 consuls; but the British masters and mariners were marched in 
 parties into the interior of the country, and treated as prisoners of 
 war. A convention hostile to Great Britain was formed between 
 Russia, Sweden, and Denmark, and an embargo was imposed in this 
 country on the vessels of those nations. Upon the death of Paul, 
 and the succession of the Emperor Alexander, peace was re-estab- 
 lished, and the ships that had been detained on both sides were 
 mutually restored. This restitution took place in Russia at the end 
 of May, 1801. Beale and the rest of the crew re-embarked on board 
 the Aquilon, without entering into any new articles with the master,] 
 
 (A) [The Friends, 4 Rob. 143. In this (/) [Pra« v. Cuff cited in TJwmpson v. 
 
 case, the learned Judge seems to consider Eowcroft, 4 East, 43.] 
 a claim for wages after capture and recap- 
 ture, to he subject to salvage.]
 
 480 OF THE LOSS AND FOEFEITUKE OF WAGES. 
 
 Part V. [^^^^ returned to London Avitli tlie ship, which brought her cargo and 
 — earned her freight. Thompson, the owner, paid the wages at the rate 
 mentioned in the articles, exclusive of the time of the ship's detention; 
 and Beale brought his action to recover his wages for that time. In 
 support of the claim, it was contended that this conduct of the Rus. 
 sian government partook more of the nature of an embargo than of 
 a capture, and that, considering it as an embargo, tlie original con- 
 tract for wages subsisted, as had been decided in the case of a 
 contract of aflreightment («). And that the mariners^ absence from 
 the ship under these circumstances did not occasion a forfeiture by 
 the operation of those clauses of the articles which provide for the 
 continuance of the seamen on board their ship, because it was 
 involuntary on his part. On the other hand, it was insisted that this 
 was a case of hostile seizure and temporary capture, which put an end 
 to the original contract, and left the mariner a right proportionate 
 only to the services he had actually performed. And further, that if 
 it were to be considered only as an embargo, yet as the seamen had 
 not during the period of it done any duty on board the ship, or for 
 the benefit of the owners, he was not entitled to any payment; 
 and it was urged, that if the force of the Russian government fur- 
 nished an excuse to the mariner on the one hand for not performing 
 his contract by continuing on board the ship, so on the other hand it 
 ought to exempt the owner from paying for what he had not received. 
 The learned Judges of the Court of Common Pleas were divided in 
 opinion as to the character to be attributed to these acts of the Rus- 
 sian government, upon which the determination of the question 
 between the parties Avas thought principally to depend (b). The 
 cause was brought before the Court of King's Bench by writ of error, 
 and, after consideration, the judgment of the court was delivered by 
 Lord Ellenborough in favour of the claim of Beale, the mariner. 
 It is impossible to give the full effect of the very learned judgment 
 pronounced by the Chief Justice in an abstract, nor does the plan of 
 this Treatise allow me to transcribe the whole; I must, therefore, 
 refer the reader, who is desirous of full information, to the report (c), 
 and content myself with stating, that the Court thought it unneces- 
 sary to decide in this case, whether or no the dissolution of contracts 
 for freight and wages is the necessary effect of perfect and complete 
 capture, where the right of the original proprietor is not revested by 
 subsequent recapture, nor recognized as continuing in force by any 
 judgment or authoritative act of restitution on the part of the captur- 
 ing nation; considering this as a case of hostile seizure, with a view 
 to measures of retaliation, if they should ultimately be thought just 
 and necessary, but of subsequent restitution and abandonment of the 
 right of seiziu'C, on the part of the power by which the seizure had 
 been made ; and obsei'ving that there was no case where property so 
 dealt with had been considered as captured, or the contract for freight] 
 
 (a) See ante, p. 439. (c) [Beak v. Thompson, 4 East, 546.] 
 
 (b) IBeale v. Thompson, 3 Bos. & Pull. 
 405.]
 
 3. BY DESERTION. 481 
 
 [or wages dissolved ; and holding, therefore, that the plaintiff ^s claim Chap. 3. 
 
 was not defeated on the supposed ground of a dissolution of the con- 
 
 tract. The court also thought, that the seaman had not, in this case, 
 forfeited his wages under any of the clauses of the articles, because 
 the language of the articles, construed, as it ought to be, with refer- 
 ence to the Acts of Parliament, imported a departure from the 
 ship by the unauthorized act of the party, and did not apply to a 
 seaman taken out of his ship in the manner in which the plaintiff and 
 the rest of the crew had been in this case ; but that i£ this point 
 were more questionable than it appeared to be, yet that the return of 
 the plaintiff' to the ship in the manner stated, did, in the absence of 
 any fresh contract on the subject, import a recognition on the part 
 of the master that he and the sailors then stood in their original 
 relative situation to each other, under the articles by which that rela- 
 tion was constituted. And upon the whole the court thought, " in point 
 of law, that the contract of service, between the plaintiff and defen- 
 dant, was to be considered as having continued and been in force 
 from the time of executing the articles, up to and at the period of the 
 ship's arrival at her port of discharge, and the final termination of 
 her voyage there : and that the plaintiff was to be considered as 
 entitled to his wages during the same time." 
 
 This case was afterwards brought by writ of error before the House 
 of Lords, when the opinion of the judges was taken on the question 
 whether, on the whole of the facts found in the special verdict, the 
 original plaintiff was entitled to recover wages during the time he 
 was kept out of the ship, as found in the special verdict. The judges 
 were unanimously of opinion that he was so entitled to recover ; and 
 the Lord Chancellor concurred in their opinion {d) . 
 
 It has been observed that Beale, the plaintiff iu the case just 
 quoted, was an Englishman ; an action was also brought by a mariner 
 belonging to another ship, under circumstances the same in all 
 respects, except as to his national character, he being a foreigner. 
 In this action also the decision of the court was the same (e) . 
 
 3. Of Forfeiture of Wages by Desertion. 
 
 Desertion from the ship is held to be a forfeiture of the wages 
 previously earned, in all maritime states (/).] 
 
 By 17 & 18 Vict. c. 104, whenever any act of misconduct is com- 
 mitted by a seaman which is by the agreement subject to a fine, the 
 appropriate fine shall, if an entry of the offence is made in the official 
 
 (d) \_Thompson, plaintiff in error, Beale, s. 17. If a seaman be dismissed for gross 
 defendant in error, 1 Dow. 299.] misconduct other than desertion, he loses 
 
 (e) [Johnson v. Broderick, 4 East, 566.] aU claim to accruing wages, but he will not 
 (/) [Sse on this subject of desertion, forfeit those actually due. Button v. 
 
 Ordin. of Wisbuy, art. 61; of the Hanse Thompson, L. E. 4 C. P. 330; 38 L. J. 
 
 Towns, art. 43 ; Molloy, book 2, chap. 3, C. P. 225 ; 2 Geo. 2, c. 36, s. 3, the repealed 
 
 sect. 10 ; French Ordin. liv. 2, tit, 7, Des enactments on the subject of desertion. 
 Matelots, art. 3.1 See 11 & 12 Will. 3, c. 7, 
 
 I
 
 482 OF THE LOSS AND FORFEITURE OF WAGES. 
 
 PartV. log-book {a), and if the offence is proved to tlie satisfaction of tlie 
 superintendent of the mercantile marine office, be deducted from the 
 wages of the offender and paid to the superintendent of the mer- 
 cantile marine office before "svhom the crew of any foreign-going ship 
 is discharged, or in the case of " home-trade ships " to the super- 
 intendent of the mercantile marine office at or nearest to the place 
 "where the crew is discharged {b). 
 
 And if any seaman, during the period specified for his service, wil- 
 fully and without leave absent himself from the ship or his duty, he 
 forfeits (in all cases not of absolute desertion, or not treated as such 
 by the master) out of his wages to the master or owner the amount of 
 two days^ pay, and for every twenty-fours hours of absence six days^ 
 pay, or, at the option of the master, the amount of such expenses as 
 have been properly incurred in hiring a substitute to perform his 
 work ; and if any seaman wilfully disobey any lawful command, he is 
 subject, in addition to imprisonment with or without hard labour, to 
 the like forfeiture; for continued wilful disobedience or neglect of 
 duty, he is liable, in addition to imprisonment with or without hard 
 labour, to forfeit six days^ pay for every twenty-four hours' con- 
 tinuance of such disobedience and neglect, or the expenses of procuring 
 a substitute. If after the ship's arrival at her port of delivery, and 
 before she is placed in security, any seaman quits the ship without a 
 previous discharge or leave from the master, he forfeits to the master 
 or owner one month's pay of his wages (c) . 
 
 If a seaman deserts the ship he forfeits to the owner or master all 
 wages and emoluments to which he might have been entitled, and the 
 clothes and effects he may have left on board ; if he deserts abroad, 
 he also forfeits, at the discretion of the court, all wages and emolu- 
 ments which shall be agreed to be paid to him by the master or owner 
 of any other ship on which he may have engaged for his voyage 
 home. If, in consequence of such desertion beyond the seas, the 
 master be obliged to employ a substitute at a higher rate of wages, he 
 is entitled to recover from the deserter the excess of wages so paid by 
 liim to such substitute beyond the amount which would have been 
 payable to the deserter, in case he had duly performed his service 
 pursuant to the agreement {d). 
 
 A mode of ascertaining the amount of these forfeitures, where the 
 seaman has contracted for the voyage or the run, is provided by the 
 Act (e) . 
 
 [If a mariner quit the ship with leave of the master, and when 
 ordered to return refuse to do so, his wages are forfeited (/). But 
 they are not forfeited by his quitting the ship, and refusing to pro- 
 ceed in her on a voyage not designated by the articles {g) . And if] 
 
 (a) See Frontine v. Frost, post, p. 48i. (/) [The Btdmer, 1 Hagg. 163.] The 
 
 (b) Sect. 256. Jujiitei; 3 Hagg. 221. 
 
 (c) 17 & 18 Vict. c. 104, s. 243. (g) [The Ftiza, id. p. 182. The Countess 
 (rf) Sect. 243. See Button v. Thompson, of Sarcourt, id. p. 248.] The Camlridge, 
 
 L. R. 4 C. P. 330. 2 Hagg. 243. See further as to what 
 
 (e) Sect. 252. As to the application of amounts to desertion, ante, p. 132. 
 forfeitures, see sect. 253.
 
 3. BY DESERTION. 4i83 
 
 [in the Court of Admiralty tlie owners allege desertion as a defence to Chap. 3. 
 a suit for wages, it is incumbent on them to show the articles or con- "" 
 tract, in order that the stipulated service may appear {h). 
 
 In the case of certain mariners hired in the Downs, for a voyage 
 or run to the port of Hull at ttvelve guineas each, who with the con- 
 sent of the master but against the positive orders of the owners, 
 quitted the ship on the day after her arrival in the roadstead of that 
 port, in the river Humber, the port being so full that the vessel could 
 not enter immediately : the Court of Admiralty decreed that the 
 mariners had forfeited their wages. The ship actually entered the 
 port within a week ; it did not appear that at the time of the deser- 
 tion there was any prospect of a lasting impediment ; and the learned 
 judge, without determining how long mariners were bound to wait in 
 such a case, held that they could not be entitled to their dismissal, 
 ''till after some time of just expectation of the removal of the 
 difficulty '^ (2). 
 
 Certain articles of agreement for service in a privateer contained 
 in the body of a clause imposing the penalty of forfeiture of wages 
 for twenty -four hours' absence without leave; and, in addition 
 thereto, contained also the following memorandum written in the 
 margin, viz. : " to leave at the end of three months, if the ship is in 
 port, or in perfect safety, of which the captain is to be the sole judge.''' 
 The ship belonged to the port of London. The captain's cook, who 
 had signed these articles, brought an action against the master for 
 his wages ; and at the trial it appeared that the plaintiff had served 
 ten months, and on his return from a cruise, while the ship was in 
 Yarmouth Roads, and the master was on shore, he asked leave of the 
 mate to go on shore to see his wife, but was told by the mate that he 
 could not say whether he might have leave or not : the plaintiff, how- 
 ever, went on shore, and did not afterwards join the ship. Yarmouth 
 Roads are rather a dangerous place ; the crew had originally consisted 
 of twenty mariners ; twelve were sufficient to navigate the ship to 
 London ; and the boatswain, quarter-master, and two lieutenants had 
 been previously discharged. The learned judge (Mr. Justice Chambrk) 
 before whom the cause was tried, told the jury that under such a 
 clause he did not think the master could refuse leave without a 
 sufficient reason, and left it to them to consider whether the ship was 
 in a place of safety when the plaintiff quitted. The jury found a 
 verdict for the plaintiff, and the Court of Common Pleas afterwards 
 approved of the direction of the learned Judge, and the verdict was 
 established {k) . This being the case of a private ship of war, and 
 not of a merchant vessel, the forfeiture depended upon the particular 
 contract of the parties, and not upon any legislative enactment.] 
 
 By the 2 Geo. 2, c. 36 (now repealed) reciting that " seamen and 
 mariners, after their ship's arrival at their unlivering port in Great 
 Britain, ofttimes leave the ships and vessels before they are unladen, 
 
 Qi) [The Btilmer, 1 Hagg. 163] j 4 & 5 {k) \_Neave v. Fratt, 2 B. & P. New Rep. 
 
 Will. 4, c. 19, s. 16. 408.] 
 
 {i) [The Fearl, 5 Rob. 224.] 
 
 2i3
 
 484 
 
 OF THE LOSS AND FOEFEITUEE OF WAGES. 
 
 Part V. or before the said seamen and mariners are discharged by the masters 
 or commanders of such ships and vessels/^ it was enacted, " that in 
 case any seamen or mariner, not entering into the service of liis 
 Majesty, his heirs and successors, shoukl leave such ship or vessel to 
 •which he or they belonged, before he or they should have a discharge 
 in writing from the master or commander, or other person having the 
 charge of such ship or vessel, he or they so leaving such ship or vessel 
 should forfeit one month's pay"^ to the use of Greenwich Hospital [a). 
 Althongh by this clause the discharge was required to be in writing, 
 yet in an action brought by a seaman against the master for his 
 wages, at the trial whereof it appeared that the plaintiff and several 
 others left the ship under these circumstances, while she was under 
 the command of the mate, and the master insisted upon his right to 
 make this deduction, but did not call the mate to prove that he had 
 not given a discharge in writing; it was held that the jury might 
 presume that the plaintiff had received such a discharge : this being 
 the case of a penalty in which the negative ought to be proved by the 
 party insisting on the forfeiture, as the circumstances of the case 
 appeared to afford him the means of doing so {b). It is to be 
 observed, that in this case the defence at the trial was grounded on 
 the particular enactment of the statute. 
 
 [The same statute authorized the master or owner to deduct from 
 the wages due to a mariner, all the penalties and forfeitures incurred 
 by the Act, and to enter them in a book to be kept for that purpose, 
 to be signed by the master and two or more principal officers (c) ; 
 and it was held that the master could not make this deduction, unless 
 the forfeiture had been regularly entered in a book as the statute 
 directed {b). 
 
 I have already mentioned that entry into the service of her Majesty 
 is not deemed a desertion, nor followed by the forfeitures of wages {d) .] 
 But where a mariner quitted a vessel in defiance of the master, with 
 opprobrious language — and, ivithoiit any declaration of such intention 
 when he quitted the vessel, entered on board a King^s ship within 
 twenty-four houi's, it was held to be a desertion^ working a forfeiture 
 of wages [e) . 
 Forfeitm-e [A forfeiture in this, as in other cases, may be waived by the party 
 
 may be entitled to take advantage of it. And accordingly, in the case of a 
 
 foreign seaman, by whose articles it was provided, " that if any of the 
 crew should absent themselves before the ship was unloaded without 
 the master^s leave, they should forfeit the whole of their wages,^^ and 
 who quitted the ship without leave in the port of London, before she 
 was unloaded, and was absent a day and a night, but who afterwards 
 returned to the ship, and was received by the master, and worked in 
 discharging the cargo in the same way as the other mariners, it was 
 held that the master could not set up this absence as a defence to an] 
 
 {a) 2 Geo. 2, c. 36, s. 6. {e) The Ampldtriie, 2 Hagg, Ad. Rep. 
 
 (i) Frontine v. Frost, 3 Boss. & Pull. 302. 403. See further as to desertion, and what 
 
 (c) 2 Geo. 2, c. 36, s. 9. justifies same, ante, p. 132. 
 (rf) Sect. 214, ante, p. 134.
 
 3. BY DESERTION. 485 
 
 [action brought by the seaman for his wages (/) .] But a forfeiture Chap. 3. 
 is not waived by the acceptance of a seaman's services whilst the 
 ship is in distress^ unless such acceptance be continued when the 
 necessity for them has ceased {g). On the other hand, it cannot be 
 insisted on, if the seaman's breach of duty be occasioned by the 
 master's misconduct [h) . 
 
 [It is, however, of great importance to understand that the for- Forfeiture 
 feiture of wages for desertion does not arise out of these provisions depends ou 
 
 T • • T fiTGncrRi rule 
 
 of the legislature, but depends, as I have already intimated, upon „£ i^„, 
 a general rule and maxim of the maritime law. This point has been 
 most ably discussed and enforced in a judgment pronounced by a 
 learned judge of the Court of Admiralty, which], notwithstanding 
 a decision (i) on the construction of the 5 & 6 Will. 4, c. 19, ss. 7 & 9, 
 (now repealed) [requires to be quoted, as a most excellent illustration 
 of general principles. A West India ship having returned with a cargo 
 to the river Thames, was lashed to another vessel in the port of 
 London, a little below Blackwall, preparatory to her entrance into 
 the West India Dock, for the discharge of her cargo, being the only 
 place at which it could lawfully be discharged. In this situation the 
 carpenter quitted the ship without the permission of the mate, who 
 was left on board in the command, and probably with a knowledge 
 that permission had been actually refused. It appears that several 
 others of the crew left the ship in the same situation ; and the owners 
 were obliged to procure other assistance to work the vessel into the 
 dock. The carpenter instituted a suit for his wages, and it was con- 
 tended on his behalf, that if any penalty at all Avas incurred, it was 
 only a forfeiture of one moath's pay to Greenwich Hospital, under the 
 statute 2 Geo. 2, c. 36, s. 6. On the other hand, the owners insisted 
 that the entire right to wages was forfeited and gone by this deser- 
 tion; and the learned judge so decreed, and made the following 
 remarks upon the law in such cases : " The question then is as to the 
 penalty; if the word penalty is that which properly belongs to this 
 act of misconduct. That such a demand as this, for entire wages, 
 under such conduct on the part of those who claim them, could have 
 been at any time supported, is inconceivable ; if owners are damnified 
 by the misconduct of their mariners, they are entitled upon every 
 principle of reason and justice to a set-off against the demand of 
 wages, on account of the hazards to which their property has been 
 exposed by the non-performance of the contract. By interpretation 
 of law, the voyage is not completed by the mere fact of arrival : the 
 act of mooring is an act to be done by the crew, and their duty 
 extends to the time of the unlivery of the cargo [k). There is no 
 period at Avhich the cargo is more exposed to hazard than when it is 
 in the act of being transferred from the ship to the shore ; and there-] 
 
 (/) \_3mier V. Brant, 2 Campb. 590], The WeHmoreland, 1 Wm. Rob. 216. This 
 
 and 5 & 6 Will. 4, c. 10, s. 7. paragraph is taken from the 5th edition of 
 
 (g) Train v. Bennet, 3 C. & P. 3. this work published in 1827. See M. S. 
 
 {h) Ibid. Act, 1854, sect. 243, ante, p. 482. 
 
 ii) McDonald v. JopUng, 4 M. & W. (k) The Cambridge, 2 Hagg. Ad. Rep. 
 
 285 ; the Tioo Sisters, 2 Wm. Rob. 128 ; 243. See also the Westmoreland, supra.
 
 "^^^ Of THE LOSS AND rOErEITUEE OF WAGES. 
 
 Part V. [fore the law, not only the old law, but particularly the statute by 
 which the West India trade has been in latter times regulated, has 
 enjoined, in the strictest manner, 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 mariners, 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 compensation against the 
 mariners, on account of the non-completion of the contract. This is 
 consideration not in modum pcence, but it is a civil compensation for 
 injury received, existing in all reason and justice antecedently to any 
 statute upon the subject. In the case of freight, if a master does not 
 execute any part of the contract, it is in strict principle a forfeiture 
 of the whole freight, and so it would be in these cases of wages, 
 though tlie law has not usually been carried to its full extent ; but 
 from that indulgence with which it has always contemplated the 
 interests, and even the errors and failures of this class of men, it has 
 wrought only the forfeiture of a part of the wages by way of com- 
 pensation to the owner for the trouble and risk of the exposure of 
 his property, and for his additional expense in procuring other assist- 
 ance to affect that which ought to have been effected by such deserters. 
 Then came the statute of merchant seamen, which contained a clause, 
 giving one montVs wages to Greenwich Hospital in cases of deser- 
 tion, and in the argument which has been founded, I presume, upon 
 the case of Frontine v. Frost, it is urged as if it was understood to 
 transfer a part of the forfeited wages to that institution. It was laid 
 down pretty strongly in the argument of that case by counsel, that 
 the delinquent does not forfeit the whole of his wages, which is true. 
 But it was further argued, that the master must have debited himself 
 to Greenwich Hospital in order to entitle himself to make the deduc- 
 tion, on the ground that the deduction is for the benefit of that 
 charity, and not for the compensation of the owner. Now I take the 
 interpretation of the case to be this ; that it will not entitle the owner 
 to set off" the forfeiture to Greenwich Hospital as a forfeiture under 
 the statute, which he had done in the pleadings, unless he shall have 
 complied with the requisitions of the statute — that he shall not lose 
 his own right of deducting a compensation due to himself personally 
 on account of the imperfect execution of the contract. I have con- 
 versed with very learned persons, who were interested in that judg- 
 ment, and from whom I understand that the authority of their 
 opinions concurs in sustaining the proposition, that the owner is not 
 debarred by the provisions of the statute from those rights to which 
 he was entitled under the old law. The legislatiu'e never could have 
 intended to deprive the owner of his remedy, when it superadded this 
 forfeiture in favour of the hospital, which Avas to be obtained in the 
 modes it has prescribed. The case does not, I think, in any manner 
 interfere with the principle which I have laid down, that the owner 
 is at liberty to set off" the compensation to which he is entitled against 
 a demand for wages independently of that statute. But the present 
 case goes a gi-eat deal further ; it is true the vessel had arrived in the 
 river, but the voyage was not finished, it was still to be prosecuted.]
 
 5. BY EMBEZZLEMENT. 487 
 
 [The Acts whicli have passed having made tlie West India Docks the Chap. 3. 
 only place where these cargoes can be discharged, the voyage can — 
 only terminate there ; the vessel has not, till then, arrived at her final 
 moorings. Her port is not the port of London generally, hut that 
 particular portion of it which is expressly and exclusively appropriated 
 for the reception of West India ships. It is therefore a desertion 
 during the voyage, which by the old law, as well as by the statute, 
 works a forfeiture of the whole wages ; and it is a case of a very 
 flagrant nature " [a) .] 
 
 4. Forfeiture for wilful neglect of Duty, S^^c. — Refusing to assist the 
 Master in defending the Ship against Pirates. 
 
 [The legislature has also punished with the forfeiture of wages the 
 offence of neglecting or refusing to assist the master in defending the 
 ship against the attack of pirates {b) .] It seems also that habitual 
 neglect of duty, disobedience of orders, habitual drunkenness, or any 
 cause which will justify a master in discharging a seaman during the 
 voyage, will also deprive the seaman of his wages (c) . But a single 
 act {d), or even occasional acts of intemperance, will not have that 
 effect (e). A learned judge of the Court of Admiralty (Dr. Lusn- 
 ington) has expressed an opinion, that the misconduct of the seaman 
 must, to work a forfeiture of wages, be of such a character as to 
 render his discharge imperatively necessary for the safety of the ship, 
 and the due preservation of discipline (/). 
 
 As to forfeiture of wages, &c., of seamen when his illness caused 
 by his own default, see 30 & 31 Vict. c. 12J<, s. 8. 
 
 As to deducting fines and forfeitures incurred by a seaman from his 
 wages, see ante, pp. 481, 483 ; and as to deducting from his wages 
 amount of damage wilfully done by him, see jwst, p. 488. 
 
 5 . In case of Embezzlement by the Mariners. 
 
 [If the cargo be embezzled or injured by the fraud or negligence of 
 the seamen, so that the merchant has a right to claim a satisfaction of 
 the master and owners, they may, by the custom of merchants, deduct 
 the value thereof from the wages of the seamen by whose misconduct 
 the injury has taken place [g) .] A proviso in the agreement with 
 
 (rt) [The Baliic Merchant, 1 Edw. 86.] {d) The Martha, 2 Hagg. 158 ; the 
 
 But see oil the construction of 5 & 6 Will. 4, i:aUng Grove, 2 Hagg. 15 ; the Gondolier, 
 
 c. 19, ss. 7 & 9, MBonald v. Jo]}Ung, 3 Hagg. 190. 
 
 4 M. & W. 285. (e) The Lady Camphell, 2 Hagg. 5. 
 
 (b) [22 & 23 Car. 2, c. 11, s. 7.] (/) The Blal-e, 1 W. Rob. p. 73; the 
 
 (c) [See the judgment of Sir WlLLiA^r Duchess of Kent, 1 W. Rob. 283. 
 
 Scott, in Eobinetty. the ship Sxeter, 2 Uoh. {g) [Molloy, book 2, chap. 3, sect. 9, 2 
 
 261.] See Button v. Thompson, ante, p. 481. Show. 167 j 1 Lord Raym. 650.]
 
 488 OP THE LOSS AND FOEFEITURE OF WAGES. 
 
 Part V. seamen^ sanctioned by tlie Board of Trade^ is calculated to enforce 
 
 this rule in the case of embezzlement, either of the cargo, or of the 
 
 ship's stores. This proviso affects only the particular persons guilty 
 of the embezzlement, and not the whole crew («) . Nor is any inno- 
 cent person liable to contribute a portion of his wages to make good 
 the loss occasioned by the misconduct of others («) . 
 
 By sect. 243, sub-sect. 8, for wilfully damaging the ship, or 
 embezzling or wilfully damaging any of her stores or cargo, a seaman 
 is liable to forfeit out of his wages a sum equal in amount to the loss 
 thereby sustained, &c. {b). 
 
 («) [^Thompson v. Collins, 1 Bos. & Pull. (b) Sec forms of agreement with seamen 
 
 N. K. 347;] Frince Frederick, 2 Hagg. Ad. in Appendix. 
 Ecp. 394.
 
 ACTIONS I'OE WAGES. 489 
 
 Chap. 4. 
 
 CHAPTER IV. 
 
 OF PROCEEDINGS TO OBTAIN THE PAYMENT OF WAGES ; AND HEREIN, 
 
 Sects. 1. 'Proceedings hy Suit in ilie Court of Admiralti/ agai-nst the Skip in Specie, 
 p. 489. 
 
 2. £g Action at Common Laio against the Master or Owners, p. 493. 
 
 3. Under 17 cj" 18 Vict. c. 104, bg Complaint on Oath to a Magistrate, p. 493. 
 
 4. Master's Remedies for his Wages, p. 494. 
 
 [Having, in the three preceding chapters, considered the contract for 
 service on board a merchant ship, the cases in which the remuneration 
 of such service is due, either wholly or in part, and those in -vvhich it 
 is lost or forfeited, I propose in this last chapter to treat of the means 
 of obtaining this remuneration by legal process.] 
 
 1. Proceedings by Suit in the Court of Admiralty against the 
 Shij) in Specie. 
 
 [According to the observations made in a former part of this loiintr rule 
 Treatise (e), the jurisdiction of the Courts of Common Law {d) can in ?"^^ "'' '^"^" 
 this case be exercised only by suit against the person; but the juris- 
 diction of the Court of Admiralty may be exercised by process 
 against the ship, or the proceeds of a sale thereof remaining in the 
 court. In this court alone, therefore, that principle of the Maritime 
 Law, which holds the ship in specie to be subject to the claim of 
 wages earned by service in it, can be carried into effect. The Court 
 of Admiralty was originally constituted for the adjudication of causes 
 and disputes arising upon the high sea, and within the jurisdiction of 
 the Lord High Admiral, whose deputy the judge of that court 
 formerly was. The proceedings therein, being according to the 
 course of the Civil Law, appear to have been very unpopular in 
 ancient times; and two statutes were made in the reign of King 
 Eichard the Second, upon the complaint of the Commons of Eng- 
 land, to define the limits of its jurisdiction ; by the first of which it 
 is " accorded and assented, that the admirals and their deputies shall 
 not meddle from henceforth of anything done within the realm, but 
 only of a thing done upon the sea, as it hath been used in the time 
 of the noble prince King Edward, grandfather of our Lord the King] 
 
 (c) Part II., Chap. 3. the Courts of Common Law which were In 
 
 (d) This paragraph, it will be noticed, is existence before the passing of the Judi- 
 taken from the 5th eel. of this work. The cature Acts. See Preface to this edition. 
 Courts of Common Law here referred to are
 
 490 ACTIONS AND PKOCEEDINGS FOR WAGES. 
 
 Part V. [that now is " (a) . By the othcr^ " It is declared, ordained, and estab- 
 lishedj that o£ all manner of contracts, pleas, and quarrels, and all 
 other things arising within the bodies of counties, as well by land as 
 by water, and also of wreck of the sea, the Admirars Court shall 
 have no manner of cognizance, power, nor jurisdiction'^ {b). Con- 
 sidering these statutes Avith reference to the present subject, it ia 
 evident that] before recent enactments, (c) [if the seaman^s claim to 
 wages was in reality founded on the performance of his ser- 
 vice in the navigation of a ship on the high sea, the Court of Admi- 
 ralty must have had cognizance of the claim ; and, on the other 
 hand, that if the claim was in reality founded on the contract made 
 for performance of such service, and such contract was, as it usually 
 was, made on shore, or in a port or river within the body of a county, 
 the Court of Admiralty had no cognizance of it. In this view of the 
 subject, it is difficult to distinguish the case of the master from that 
 of the persons employed under his command ; the nature and place 
 of the service, and the place of tlie hiring, are in both cases usually 
 the same. Nevertheless, a distinction was made between them, and 
 had become a settled rule of law. In pursuance of this distinction 
 the seamen had in ordinary cases a threefold remedy : against the 
 ship, the owners, and the master ; the master a remedy against the 
 owners only. The suit of the seamen in the Court of Admiralty was 
 frequently spoken of as an excepted case, and an indulgence granted 
 to them on account of the inconvenience and advantage of pro- 
 ceeding in a court in which all might join in one suit, and payment 
 obtained out of the value of the ship ; and of the presumption that 
 they who contract with the master, contract with him on tlic credit 
 of the ship; whereas the master, who contracts with the owners, 
 was presumed to trust to their personal credit.] 
 
 In the 5tli ed. of tliis Avork it is stated that [the clear result of the 
 several decisions {d) upon this subject is that if the hiring be on the 
 usual (e) terms, and made by word, or by writing only, and not by 
 deed, the seamen, or any one or more of them, and every officer, 
 except the master, may sue in the Court of Admiralty, and may by 
 the process of that court arrest the ship as a security for their demand, 
 or cite the master or owners personally to answer to them] . As noticed, 
 post, pp. 492 and 494, the jurisdiction of the Court of Admiralty 
 
 (a) 13 Rich. 2, stat. 1. c. 5. (e) The Sidiieij Coce, 2 Dods. 12; the 
 
 lb) 15 Rich. 2, c. 3. 3Ioiia, I W. Rob. 137; the Sibi/ Grove, 2 
 
 (c) The remaining part of tliis paragraph W. Rob. 52, where in a suit for wages, ]jart 
 is in substance the same as the 5th ed. of this of •\vhicli by the seaman's contract was to 
 work, but it is not copied fe/'6a^i)»tlieref'rom. consist in a share of the proceeds of a 
 
 (d) \V'mch, 8; Alleson V. Mursh, 2 Yont. whaling voyage, the Court of Admiralty 
 ISi; Anon. 3 Mod. 379; JBens v. Parre, 2 sustained an objection to its jurisdiction. 
 Lord Raym. 1206; the Mariners' case, 8 The Debrecsia, W. Rob. 33; the Harriet, 
 Mod. 379; Haffff v. Kinr/, 2 Stra. 858; 1 1 Lush, 285. And a seaman who had taken 
 Barn. 297; Wheeler v. Thompson, 1 Stra. a bill of exchange on the owners for his 
 707 ; the Lord Sobart, 2 Dods. lOi ; the wages was held to have lost his right to 
 Prince George, 3 Hagg. 376; Mills \. Long, proceed in Admiralty against the ship. The 
 
 1 Saver, 136 ; Baiiley v. Grant, 1 Lord William, 2 Hagg. 136. 
 Raym. 632 ; Salk. 33 ; Piead v. Chapman, 
 
 2 Stra. 937 ; the Earriet, 1 Lush, 285.
 
 1. PROCEEDINGS AGAINST THE SHIP. 491 
 
 over claims for wages by the master and seamen has been consider- Chap. 4. 
 ably extended. 
 
 [And the seamen might sue in the Court of Admiralty not only for 
 the wages earned in the course of a voyage^ but for those earned in 
 rigging and fitting out a ship for a voyage, on which they had 
 engaged to proceed,, if the owners did not afterwards think proper to 
 send the ship on the intended voyage (/). And it seems also that 
 they might sue there for the Avages contracted to be paid to them for 
 navigating a ship from one port of this country to another {g) .] If 
 the master had obtained a sentence in the Court of Admiralty upon 
 the usual allegation, stating that he was hired within the jurisdiction 
 of that court, the courts at Westminster Hall would not prohibit the 
 execution of the sentence {h). 
 
 [In regard to foreign seamen, the Court of Admiralty entertained 
 proceedings against ships in the ports of this country, at their suit, 
 for wages as due by the general maritime law, with the consent of 
 the accredited agent of the government of their country. But a 
 learned judge of that court refused to proceed in the suit of an 
 American seaman, whose claim was founded, not on any such rule of 
 law, or any custom of his country, but merely on a particular article 
 in an alleged Act of Congress, which was not incorporated into the 
 ship^s articles [i). In the case of a Greek vesssel which had been 
 sold in this country, under a decree of the court, in a suit instituted 
 by the holder of a bottomry bond, the same judge ordered the charge 
 of the subsistence of the Greek seamen to be paid out of the proceeds. 
 It was proved, that by the customary regulations of Turkey, the 
 master is to take back the men in his own vessel, or provide convey- 
 ance for them in another ; and if the vessel be sold, the proceeds are 
 liable to their support, and to procure them the means of conveyance 
 to their own country. The seamen had, in fact, been subsisted and 
 sent home by the British government, and the Kiug^s proctor inter- 
 vened in the suit. The learned judge adverted to this proof, but also 
 said that he considered subsistence to be a part of the compensation 
 for the services of a mariner, and so in effect a part of his wages. It 
 does not appear by the report whether any expense had been incurred 
 in sending back the men beyond that of their siibsistence, or whether 
 any other expense was decreed or claimed [k) . And in the case of a 
 Dutch ship which put into the Isle of Wight in great distress, and 
 was there abandoned by the owners to the discretion of the master, 
 and assigned to British creditors, the same learned judge considered 
 the owners as having disclaimed the articles of agreement with the 
 mariners, which contained a clause against suits in a foreign country, 
 and the contract with them to be determined, and that their suit was] 
 
 (/) [ f^ells V. Sosman, 2 Lord Raym. (h) Barber v. Wharton, 2 Lord Raym. 
 
 1044 J 5 Mod. 238. See Mills v. Qregory, 1452. 
 
 Sayer, 127.] (i) Tlie Courtney, 1 Edw. 239. 
 
 \g) [Anon. 1 Vent. 343. The application \k) [T\\c Madonna D'Idra, 1 Dods. 87,] 
 
 for a prohibition was after sentence. See The Vrow Mina, ibid. 234. The Gohb- 
 
 31 Geo. 3, c. 39, s. 6 ; Brown v. Ben7i, 2 chick, 1 Wm. Rob. 143. 
 Lord Raym. 1247.]
 
 492 ACTIONS AND PEOCEEDINGS FOR WAGES. 
 
 Part V. [the arrest of a British sliip, and their claim sustainable on the general 
 
 law (a) . In the case also of an American ship^ which had sailed from 
 
 New York under an engagement with the mariners for a voyage to 
 Gottenburgh and back^ but which, in fact, sailed to Petersburgh, and 
 after delivering her cargo there, took a cargo for London under a 
 British licence, which was in contravention of the law of America, 
 the seamen were allowed to recover their wages; the character of 
 alien enemy was, for the purpose of this voyage, removed by the 
 British licence, as far as respected a proceeding of this natui'e in a 
 British court : and the learned judge thought the seamen would be 
 without remedy, if the court refused its assistance (b).] 
 
 As to moving for a prohibition before 24 Vict. c. 10 {infra), where 
 a seaman sued for wages in the Court of Admiralty, where such court 
 had not jurisdiction, see the lltli edition of this work, p. 513 (c). 
 Present law. The master by the IQlst section of the M. S. Act, 1874, post, p. 494, 
 has now the same remedies as the seamen. And by the 24 Vict. c. 10, 
 s. 10, it is enacted that the High Court of Admiralty shall have 
 jurisdiction over any claim by a seaman of any ship for wages, earned 
 by him on board the ship, whether the same be due under a special 
 contract or otherwise, and also over any claim by the master of any 
 ship for wages earned by him on board {d) the ship, and for disburse- 
 ments made by him on account of the ship, subject, however, to his 
 not being entitled to recover any costs if he recovers less than 50/., 
 unless the judge certify the cause to have been one fit to be tried in 
 that court. See this section and the cases decided on it in the 
 Appendix. 
 
 By the 17 & 18 Vict. c. 104, no seaman, by reason of any agree- 
 ment, shall forfeit his lien upon the ship, or be deprived of any 
 remedy for the recovery of his wages, to which he would otherwise 
 have been entitled ; and that every stipulation inconsistent with that 
 Act, whereby any seaman consents to abandon his right to wages in 
 the case of the loss of the ship, or to abandon any right which he may 
 have or obtain in the nature of salvage, shall be inoperative [e). 
 
 As to suing in a county court, see 31 & 32 Vict. c. 7 ; and as to 
 costs when an action brought in the High Court of Justice when it 
 might have been brought in a county court, see sect. 9 of that Act. 
 
 (a) [The Wilkelm Fredericlc, 1 Hagg. Ad. (e) Sect. 182. Button v. Thompson, L. E. 
 
 Eep. 138. 4 C. P. 330. By the M. S. Act Amendment 
 
 (i) The Maria Theresa, 1 Dods. Ad. Eep. Act, 1862, 25 & 26 Vict. c. 6.S, s. 18, this 
 
 303.] section is not to apply to the case of any 
 
 (c) See Buggins v. Bennett, 4 Buit. stipulation made by the seamen belonging 
 2035. Bens v. Parre, 2 Lord Baym. 1206. to any ship, -which according to the terms 
 And see the cases iu A<1miralty. The Isa- of the agi'eemeut is to be employed on sal- 
 hella, 2 Eob. 241. Sidney Cove, 2 Dods. vage service, with respect to the remunera- 
 p. 11. The Alona, 1 W. Eob. 137. The tion to be paid to them for salvage services 
 Mariner's Case, 8 Mod. 379. Opg v. Child, to be rendered by such ship, to any other 
 Salk. 31 ; 12 Mod. 38. Bay v. Serle, 2 Str. ship or ships. The Pride of Canada, 
 961 ; 2 Baniardiston, 819, noticed 11th ed. Br. & L. 208. The Ganges, L. E. 2 A. & E. 
 of tills work, p. 515. Sotoe v. Kappier, 4 370. The repealed enactments are 5 & 6 
 BuiT. 1944. Menetone v. Gibbons, 3 T. E. Will. 4, c. 19, s. 5 j 7 & 8 Vict. c. 112, s. 5j 
 267. Buck V. Atwood, 2 Str. 761. 13 & 14 Vict. c. 93, s. 53. 
 
 (d) Tlie Eajah of Coch in, Swa. 473, where 
 part of services perfonued on shore.
 
 3. PEOCEEDINGS BEFORE MAGISTEATES. 
 
 493 
 
 [All suits and actions brought in the Court of Admiralty for Chap. 4. 
 
 seamen^s waffes must be commenced within six years next after the 
 
 cause of such suit or action shall accrue, unless the party entitled to ,. .".^ 
 
 in 1 •! -i-i n r J limitations, 
 
 sue snail at that time be within the age or tweaty-one years, a feme 
 covert^ non compos mentis, or unless such party, or the party sued, 
 shall be at that time beyond the seas; in which cases the suit maybe 
 brought within six years after the paYty suing shall be of full age, 
 discovert, of sane memory, or at large; or either the party suing, or 
 the party sued, shall return from beyond the seas (/).] 
 
 As to a seaman being allowed to prove the agreement with him Pi'oof of 
 without producing the original or giving notice to produce it, see ^o^'eement. 
 sect. 165 [g). 
 
 As to erasures, &c., in an agreement being inoperative, see 
 sect. 163. 
 
 As to competing liens, and when lien for wages has priority over Competing 
 other liens, see post, Part VI.^ Chap. 4. [h). 
 
 liens. 
 
 2. By Action at Common Law against the Master or Owners. 
 
 [In the Courts of Common Law the seamen may sue either the 
 master (i), as the person immediately contracting with them and 
 answerable to them, or the owners, as the persons virtually contract- 
 ing with them, through the agency of the master, and answerable for 
 the performance of his engagement.] 
 
 Where a seaman agreed not to sue any of the owners for wages, 
 except one of them, who was the captain, he was held not entitled to 
 sue the others, though they had received the proceeds of the cargo, 
 and one of them was the managing owner {k). 
 
 3. Under 17 <Sf 18 Vict. c. 104, by complaint on Oath to a Magistrate. 
 
 The 17 & 18 Vict, c, 104, in adopting, with some modifications, 
 the provisions of former Acts, gives a summary mode of recovering 
 wages, — enacting that any seaman or apprentice may sue in a sum- 
 mary manner before two justices of the peace residing near to the 
 
 (/) 4 Anne, c. 16, sects. 17, 18, 19. The 
 length of time thus allowed may be very 
 inconvenient in the case of a suit against 
 the ship, if the property thereof has been 
 changed. The French Ordinance allows 
 only one year. As to a creditor beyond 
 seas or imprisoned not now being entitled 
 to further time to sue on these accounts, 
 see 19 & 20 Vict. c. 97, s. 10. 
 
 (ff) Boioman v. Manzelman, 2 Campb. 
 315. 
 
 (A) The Favorite, 2 Rob. Ad. Rep. 232; 
 
 French Ordin. liv. 1, tit. 14, Be la saisie 
 des vaisseaux, art. 16, and Valin thereon. 
 Code de Commerce, art. 192. And see the 
 judgment of Sir John Nicholl in the 
 Rersey, 3 Hagg. 407. See the Jenny Lind, 
 41 L. J. Ad. 63 ; L. R. 3 A. & E. 529. 
 
 (i) See the Salacia, 32 L. J. Ad. 41. 
 what courts are here referred to, see ante, 
 p. 489 (h.) 
 
 {Jc) McAuUffe V. BiclcneU, 2 C. M. & R. 
 263.
 
 494 ACTIONS AND PEOCEEDINGS FOR WAGES. 
 
 Part V. place •\vhere tlie service shall have terminated^ or at which the seaman 
 
 or apprentice has been discharged, or at which any person on whom 
 
 the claim is made resides, and before the sheriff also in Scotland, for 
 any amount of wages not exceeding 50/. above the costs of the pro- 
 ceeding; and that every order made by such justices or sheriif shall 
 be final (a). 
 
 And to enforce the adoption of this less costly remedy, it is 
 enacted, that no suit for wages shall, unless they exceed 50/., be 
 instituted against the ship, or the master or owner thereof, in any 
 Court of Admiralty, or of Record, in the Queen^s dominions, or the 
 territories o£ the East India Company, unless the owner be bankrupt 
 or insolvent, or the ship under arrest or sold by the authority of a 
 Coui't of Admiralty, or unless a magistrate acting under the authority 
 of this Act shall refer the case to be adjudged by any such court, or 
 unless neither the owner nor master shall reside near the place Avhere 
 the service of the seaman shall terminate, or be discharged, or put on 
 shore (b). 
 
 But no seaman, who is engaged for a voyage to terminate in the 
 U. K., is entitled to sue in any court abroad for wages, unless he is 
 discharged Avith the sanction required by the Act, and with the 
 written consent of the master; or proves such ill-usage on the 
 part of the master, or by his authority, as to warrant reasonable 
 apprehension of danger to the life of such seaman, if he were to 
 remain on board (c). 
 
 4. The Master's Remedies for his Wages, 
 
 By 17 & 18 Vict. c. 104, s. 191, it is provided 'Hhat every master 
 of a ship shall, so far as the case permits, have the same rights, 
 liens [cl), and remedies, for the recovery of his wages which by this 
 act, or by any law or custom, any seaman, not being a master, has 
 for the recovery of his wages : and if in any proceeding in any Court 
 of Admiralty or Vice-Admiralty, touching the claim of a master to 
 wages any right of set-off, or counter-claim, is set up, it shall be 
 lawful for such court to enter into and adjudicate upon all questions, 
 and to settle all accounts (e) then arising or outstanding and 
 unsettled between the parties to the proceeding, and to direct pay- 
 ment of any balance, which is found to be due " (/). 
 
 It has been held that the master of a foreign ship, under this 
 section, has the same remedy for his wages against ship and freight {g) 
 
 (a) Sect. 188. before suing in the Court of Admiralty for 
 
 (h) Sect. 189. As to this section apply- wages. The Fleur de Lis, L. R. 1 A. & E. 49. 
 
 ing to mastei-s, see the Blalcenhi, Swa. 428. (f) To what ships this part of the Act 
 
 It\as been doubted whether this section applies, see sect. 109. The Rajah of CocMn, 
 
 ar)Dlies to foreign ships. Burns v. Cha;pman, Swab. 476. 
 
 28 L. J. Q. B. 6. {9) The Milford, Swab. 362. The 
 
 (e) Sect. 190. Jonathan Goodhue, ib., 524; the Golub- 
 
 (d) The Feronia, L. R. 2 A. & E. 65. chick, 1 W. Eob. 143. 
 
 (e) The master should deliver his accounts
 
 4. master's remedies for 495 
 
 as a foreign seaman has : that the section operating only " so far as Chap. 4. 
 
 the case may permit''^ does not enable a master who has given a 
 
 bottomry bond in the usual form, i.e. binding himself, ship, and 
 freight, to assert his lien upon them for his wages to the prejudice 
 of the bondholder [1\) : that the accounts spoken of mean the accounts 
 between the master and the ship, exclusive of any extraneous account 
 between them (i) ; that it is only when the shipowner or mortgagee 
 in answer to a master's suit for wages advances a counter-claim, or 
 set-off, that the court in adjudicating between him and the master 
 can allow credit to him for disbursements in respect of which he has 
 no lien on the ship and freight : and this not, it has been said, of 
 absolute right, but by the practice of the Court of Admiralty, if 
 after notice given to the consu.1 of the State to which the ship belongs 
 he acquiesces in the exercise of the jurisdiction {k) ; that the account 
 being once opened by the counter-claim of the owner, the general 
 account between him in respect of the ship and the master, but not 
 extraneous to it, must be gone through, and a balance made (/) ; that 
 a mortgagee also taking possession of the ship, and claiming the 
 benefit of items in the account against the master's claim for wages, 
 thereby makes himself a party to the whole account (l) • that a claim 
 of damages alleged by the owner to have been sustained by him, 
 through the master's misconduct or neglect of duty, will not con- 
 stitute a '' counter-claim'^ or ^'^ set-off'^ within the meaning of those 
 words in the section {m) . 
 
 A master may recover his wages though during the time of his 
 service he was occasionally drunk, or committed an error in judg- 
 ment (n) . 
 
 As the master generally receives the freight and earnings of the 
 ship, and may pay himself out of the money in his hands, he has not 
 often occasion for the aid of a Court of Justice to obtain his wages. 
 Whether appointed to that office at the commencement (o), or having 
 succeeded to it in the course (/•) of the voyage, he could formei'ly 
 only sue the owners personally in a Court of Common Law, and had 
 not until the passing of the 17 & 18 Vict. c. 101 {q), the same liens 
 and remedies for his wages as the seamen. 
 
 {h) The William, Swab. 346. The counter-claim, a claim for damages to the 
 
 Jonathan Goodhue, ib., 524. ship in consequence of the negligence of 
 
 (j) The Caledonia, Swab. 17. The Olen- the master, the plaintiff in the action, 
 
 tanner, ih., 415. The Baring, L. II. although the defendant has been paid by 
 
 2 Ad. & E. 264. insurers in respect of such damage. The 
 
 {k) The Berzogin Marie, 1 Lush. 292. Sir Charles Napier, 49 L. J. Ad. 23. 
 This case was decided before the Judicature (m) The Atlantic, Lush. 566. The 
 
 Acts. A counter-claim may now be set up Camilla, supra. The Thomas Worthington, 
 
 under these Acts. 3 W. Rob. 128. 
 
 (0 Hid. 415. (o) Eagg v. King, 2 Stra. 858, 1 Bern. 
 
 ()») The Camilla, Swab. 312. See the 297, and King v. Player there cited. Clay 
 
 City of Mobile, L. R. 4 A. & E. 191; 43 v. Sudgrove, or Snellgrove, Salk. 33, 1 
 
 L. J. Ad. 41. These cases were decided Lord Raym. 576, 12 Mod. 405 ; Garth, 
 
 before the Judicature Acts. It has been 518. 
 
 held since the Judicature Act, 1875, which (p) Read v. Chapman, 2 Stra 937. 
 
 allows a defendant to plead a counter-claim (q) Sect. 191. The Toronto, 2 Rob. 
 
 that to an action in the Court of Admiralty 232. The Batavia, 2 Dods. 500. 
 for wages a defendant may set up as a
 
 496 ACTIONS AND PKOCEEDINGS FOli WAGES. 
 
 Part V. It has been held that the 187th section of the M. S. Act, 1854, 
 which entitles a seaman to recover as -wages a sum not exceeding the 
 amount of two days' pay for each of the days not exceeding ten days, 
 dui'ing wliich, payment of his wages is delayed beyond the periods 
 in that section provided — is extended by the 191st section, ah-eady 
 mentioned, to the case of the master — unless he himself, e.g., by 
 improperly keeping back the accounts of the ship, be the cause of the 
 delay {a). Lis alibi pendens, or a fruitless judgment in an action for 
 wages obtained in another court, is no answer in Admiralty to a suit 
 in rem against the ship for the same cause whether against the debtor, 
 or a purchaser since the debt accrued of the ship, even although the 
 master or mariner may have proved his debt under the bankruptcy 
 of his debtor {b) . 
 
 {a) Tlie Princess Helena, 1 Liish, 180. (b) Read v. Chapman, 2 Stra. 937. 
 
 I
 
 PART THE SIXTH. 
 
 op GENERAL AV^EEAGEj SALVAGE, COLLISION, AND MARITIME 
 
 LIEN. 
 
 CHAPTER I. 
 
 OF GENERAL OR GROSS AVERAGE (c) ; AND HEREIN. 
 
 Sects. 1. Of the Lex Rhodia cle Jactn, and the Betjiilntions of Foreign Ordinancen 
 respecting Jettison, p. 497. 
 
 2. Of the Losses for which Contribution iy General Average shall he made, 
 
 p. 503. 
 
 3. Of Ship's Expenses in a Port of Mefuge, p. 508. 
 
 4. Of Goods sold for the Necessities of Ship and Cargo, p. 516. 
 
 5. Of the Expense of Wages and Maintenance of the Crew during the Detention 
 
 of a Ship hy Order of a Sovereign Power, p. 517. 
 
 6. Of the Expense of Wages and Maintenance of Crew while the Ship is trait ing 
 for Convoy, p. 518. 
 
 7. Of the Expense of Healing 3Iariners tvounded in Defence of the Ship, p. 519. 
 
 8. Of Loss hy Collision, p. 520. 
 
 9. Of the Jettison of Goods stowed on the Deck of the Ship, p. 520. 
 
 10. Bemarks, p. 524. 
 
 11. Wliat Articles are to Contribute, p. 527. 
 
 12. Of the Mode of Contribution, p. 528. 
 
 13. Sow settled and recovered in Case of Dispute, p. 530. 
 
 1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign 
 Ordinances respecting Jettison. 
 
 [Having thus treated of the respective duties of the owner 
 and the merchant^ I now proceed to the consideration of a subject 
 which is equally a duty of the one and the other,, — namely, the 
 general contribution that is to be made by all parties toward a 
 loss sustained by some for the benefit of all. This contribution 
 is sometimes called by the name of general average to distinguish 
 it from special or particidar average — a very incorrect expres- 
 sion {d), used to denote every kind of partial loss or damage] 
 
 ((?) See Lowndes on General Average {d) See Vol. 1, Pars. Mar. Law 284 
 
 where the laws of some foreign countries where it is suggested that a case of par, 
 on this subject are set out. ticular average is where part only of the 
 
 2k
 
 498 OP GENEEAL AVERAGE. 
 
 Part VI. [happening either to the ship or cargo from any cause whatever; 
 
 and sometimes by tlic name of (/ross average, to distinguish it 
 
 from customary average, mentioned in the bill of lading, which 
 latter species is sometimes called aho petty average. 
 
 The principle of this general contribution is known to be derived 
 from the ancient law of Ehodes, being adopted into the Digest of 
 Justinian, with an express recognition of its true origin. The wisdom 
 and equity of the rule will do honour to the memory of the state 
 from whose code it has been derived, as long as maritime commerce 
 shall endure. The principle of the rule has been adopted by all 
 commercial nations, but there is no principle of maritime law that 
 has been followed by more variations in practice. The modern ordi- 
 nances of the several continental states of Europe differ from each 
 other in many particulars relating to this general contribution, and 
 the French ordinance establishes a different mode of contribution in 
 different cases. An enumeration of these varieties would furnish 
 little entertainment or instruction to an English reader ; discordant 
 rules I'ather serve to perplex the choice than to guide the judgment. 
 If any one is desirous of knowing all that doctors have written and 
 states ordained on these particulars, I must refer him to other 
 writers; and particularly to the very elaborate and learned treatise of 
 Emerigon («) ; or to the recent publication of Mr. Benecke on Insu- 
 rance, in which latter work is much learning combined with practical 
 experience. The determinations of English courts of Justice furnish 
 less of authority on this subject than on any other branch of maritime 
 law ; there being few reported cases of questions either between the 
 parties liable to contribution in the first instance, or between a party 
 so liable and an insurer from whom indemnity has been sought. The 
 work of ]\lagens contains a variety of cases of adjustment of average 
 by consuls and courts abroad, and by merchants at home, detailed 
 with all the tedious formularies of the notarial office, and the minutiae 
 of the counting-house, but accompanied by some very judicious 
 remarks. INIucli useful information upon the subject is to be found 
 in Mr. Park's System of Marine Insurances, and also in the publica- 
 tion by Mr. Serjeant Marshall on the same subject ; but as the 
 nature of the present work requires that it should also be treated of 
 here, I shall examine, first, the cases in which general contribution 
 is to be made ; secondly, the articles that are to contribute ; and, 
 lastly, the mode of contribution — confining myself as closely as 
 possible to the authorities and practice of our own nation, or to those 
 ancient laws and ordinances which are generally considered as guides 
 by English lawyers on the subject of maritime law {b).] 
 
 cargo, &c., was in peril when the sacrifice (a) [Ch. 12, sects. 39 — 42. See also, on 
 
 was made, and when such jiart only is liable the subject of tliis chapter, Weskett on 
 
 to contribute to the loss. In Marine Instiranoe — titles. Contribution, Cuttiujr, 
 
 Insurance Law a particular average loss is General Avernge, and Jettison — in \\hicli 
 
 such loss or damage as is accidentally and are many citations from the foreign ordi- 
 
 proximately caused to the subject insured nances.] 
 by the perils insured against, (i) See also Stevens on Average.
 
 1. FOREIGN ORDINANCES. 
 
 499 
 
 [The rule of tlie Rhodian laws is tliis : " If goods are thrown over- 
 board in order to lighten a ship, the loss, incurred for the sake of all, 
 shall be made good by the contribution of all ^' [c] . The goods must 
 be throivn overboard ; the mind and agency of man must be employed : 
 if the goods are forced out of the ship by the violence of the waves, 
 or are destroyed in the ship by lightning or tempest, the merchant 
 alone must bear the loss. They must be thrown overboard to lighten 
 the ship ; if they are cast overboard by the wanton caprice of the 
 crew or the passengers, they, or the master and owners for them, must 
 make good the loss. The goods must be thrown overboard for the 
 sake of all ; not because the ship is too heavily laden to prosecute an 
 ordinary course through a tranquil sea, which would be the fault of 
 those who had shipped or received the goods ; but because at a moment 
 of distress and danger their weight, or their presence, prevents the 
 extraordinary exertions required for the general safety. When the 
 ship is in danger of perishing from the violent agitation of the wind, 
 or from the quantity of water that may have forced a way into it, or 
 is labouring on a rock, or a shallow, upon which it may have been 
 driven by a tempest ; or Avhen a pirate or an enemy pursues, gains 
 ground, and is ready to overtake it {d) , — no measure that may facili-] 
 
 Chap. 1. 
 
 (c) L. ff., cle lege Rhod. — \_Lege Rhodia 
 cavetur ut, si levandcB navis gratia jactus 
 mercium f actus sit, omnium contributione 
 sarciatur, quod 2}>'0 omnibus datum est.'] 
 
 (d) The cases of a slap in danger of 
 perishing from the ^'iolent agitation of the 
 wind, of a ship which lias sprung a serious 
 leak, of a ship fixed and labouring upon a 
 rock or shallow, of a ship in imminent 
 peril of capture, are here put, — but not the 
 case of a ship which has foundered. 
 
 The French Ordinance and the Code de 
 Commerce make, under this head, a wide 
 distinction between shipwreck and strand- 
 ing. Shipwreck (naufrage) is described by 
 Emerigou to be of two kinds — the first, 
 when a total submersion of the ship has 
 taken place, so that no part of her hull ap- 
 pears above the surface of the water — the 
 second, when the water gets into a ship and 
 fills it without the ship's disappearing. Des 
 Assur. ch. 12, s. 12. 
 
 I find no authority in English or foreign 
 writers for the position, that the agreement 
 to contribute to the cost of general average 
 losses, which is implied in every contract 
 for the carriage of goods by sea, Pardessus, 
 Droit Comm. PI. 731, extends to the expense 
 of raising or repairing a ship, or of rescuing 
 cargo from a ship, which has suffered either 
 of these descriptions of shipwreck. 
 
 The damage done to the ship by shipwreck 
 is particular average. The damage done by 
 shipwreck to the ship's cargo is particular 
 average. Ibid. PI. 737, and Emerigon, c. 12, 
 s. 41. " The owner of a wrecked ship, and 
 
 2 
 
 the owners of merchandize lost in her can 
 have no contribution from the owner of 
 merchandize which has been saved, because 
 their losses have not procured the common 
 safety. Amissce navis damnum, colla- 
 tionis consortia non sarcitur per eos qui 
 merces suas naufragio libera verunt : nam 
 Jiujus (eqiiitatem tunc admitti placuif, cum 
 jactus remedio cmteris, in commimi peri- 
 culo, salvdnavi consuUum est, 1. 5. ff. de Leg, 
 Rhod. As in the case of a fire, the man who 
 saves his own, does so on his own account. 
 Cum depressa navis aut dejecta esset, quod 
 quisque ex ed suum servasset sihi servare 
 respondit tanquamex incendio. 1. 7. ff- eod." 
 Emerigon, ch. 12, s. 41. It seems reason- 
 able that it should be so. In measures taken 
 or expenses incurred to repair the mischief 
 already done by the submersion of ship and 
 cargo, we miss the essential ingredients of 
 general average — an imminent and common 
 danger, a sacrifice voluntarily made with the 
 object of averting it, and that object at- 
 tained. Its rules seem also iuapplicable to 
 measm-es taken, or expenses incurred for 
 the purpose of preventing further damage 
 to a submerged ship, and further deteriora- 
 tion of the cargo in her. The cost of a 
 general average sacrifice is apportioned 
 \\'ithout regard to the bulk or the weight of 
 the subjects chargeable to it, according to 
 the value of them saved, a provision per- 
 fectly equitable, when before any actual 
 damage to ship or cargo, both of tliem 
 being iu equal danger of total loss, a sacri- 
 fice lias been successfully made for the com- 
 
 K 3
 
 500 OF GENERAL AVE E AGE. 
 
 Part VI. [tate the motion and passage of the ship can be really injurious to any] 
 
 mon safety. But when an accomplislied 
 misfortune has -worked a disparity, more or 
 h^ss considerable, between tlie character and 
 extent of the damage done to the ship, and 
 to the various articles of which the cargo is 
 composed, and the increase of that damage 
 to some of them is much more probable 
 than to others, the justice of bringing the 
 values eventually saved to different owners, 
 without previous agreement so to do, tan- 
 quam in unum germen, (Cousol. ch. 191. 
 Emerigon, ch. 12, s. 39), and of making 
 those who have lost the least suffer equally 
 with those who have lost the most, is not 
 apparent. The ship may have been so 
 Morn and weakened before the present dis- 
 aster, and may have sustained such damage 
 by it, as to be little better than " a congeries 
 of planks." (See Cambndge v. Anderton, 
 2 B. & C. 691), in which case it would not 
 be equitable that imperishable articles of 
 great value and little compass, such as 
 might be easily saved by their owners or by 
 salvors, whether the ship were raised whole 
 or piecemeal, should, on account of the de- 
 struction of perishable articles, have to bear 
 a considerable share of the outlay required 
 to raise her, and the more bulky and more 
 damaged portion of her lading. The ship, 
 on the other hand, may be so strong, so 
 little worn and so little damaged by the 
 disaster, as to be well worth to her owners 
 the cost of raising her, in which case it 
 would be difficult to suggest a reason why 
 any part of an expenditure necessarily in- 
 cun-ed for the preservation of the instrument 
 wherewith their contract with the goods'- 
 owner must be performed, should be re- 
 imbursed to them by an assessment upon 
 property, which they, for reward to be 
 paid to them, have agreed with him to 
 can-y to its destination." "Si enini," says 
 Loccenius, " finis hariim inqjcnsarum 
 respiciatu)', magis navis instritendcE quam 
 servandarum mercium facta sunt, Yelv.ti 
 si faher mallev.m, aid architectus seciirim 
 fractam refici curaverif, hoc faciei sitis, 
 tton condv.ctoris operae ■mmtihits. L. vi. ff. 
 de Leg. Rhod." De jure Maritime, lib. 2, 
 sect. 17. Besides, the consilium, of which 
 the damage to found a claim for general 
 average contribution, must be the direct 
 result (see post, 511, note (c) ), is in most 
 cases impossible after a ship's submersion — 
 washed, so to speak, off the wreck, the 
 master cannot ordinarily, without the con- 
 .•sent of others, and among them the agents 
 of o^wners and of abandonees, salvors, and 
 persons in authority, give effect to any 
 resolution which he, or he and his chief 
 officers, may form for the protection of 
 
 what remains of the ship and cargo. It is 
 still his duty to save as much as possible 
 for each individual owner not specially re- 
 presented on the spot, at each individual 
 owner's expense, but his dominion as master 
 over ship and cargo, and as agent for the 
 owners of both of them is gone, and with 
 it his authority to make sacrifice of the 
 property of one for the conunon benefit of all. 
 The damage done, by involuntary strand- 
 ing, to the ship, is clearly particular average 
 — the expense of getting the ship oft", if 
 incurred in time of danger to ship and 
 cargo, and for their common safety, as 
 clearly s-eneral average. \_Kemp v. Hallidai/, 
 34 L. S'. Q. B. 233 j L. R. 1 Q. B. 520, 
 ^\here the expense of raising a ship for the 
 purpose of saving her and the cargo, was 
 held to be an extraordinary expenditure 
 and not one incurred in the ordinary fulfil- 
 ment of the sliipowners duty, and a general 
 average outlay. See Schuster v. Fletclier, 
 L. R. 3 Q. B.'D. 418.] The following deci- 
 sions pronounced in our com'ts, may be pro- 
 perly noticed here. In Job v. Langton, 
 6 E. & B. 779, a ship having sailed from 
 Liverpool with a cargo on board, ran on 
 shore accidentally on the coast of Ireland. In 
 order to get her off, it became necessary to 
 discharge the whole of her cargo, which was 
 taken out and warehoused. The ship Avas 
 then got off by digging a channel for her, 
 and employing a steam tug, and was towed 
 to Liverpool to be repaired. The cargo was 
 carried on board after the ship was repaired. 
 The expense of getting out the cargo had 
 been charged, without objection, as general 
 average, the dispute was as to the expense 
 incurred after the cargo had been safely 
 warehoused, in getting off the ship ; it was 
 held, that these latter expenses were not 
 chargeable to general average, but to the 
 ship alone. In Moran v. Jones, 7 E. & B. 
 523, a ship having been di-iven on a baidv 
 by a storm, and being in imminent danger 
 of total loss, was lightened of her cargo, 
 which was can'ied to Liverpool, and ware- 
 housed there. Some days afterwards the 
 ship was got oft" and taken to Liverpool, 
 where she was repaired, and again took the 
 cargo on board and proceeded on her voyage. 
 The question for the court was, whether 
 the expenses incurred after the cargo was 
 in Liverpool, in getting the ship oft", with- 
 out which she could not have proceeded on 
 her voyage or earned her freight, were 
 general average, to which ship, freight, 
 and cargo were to contribute, or were 
 chargeable to ship alone ; and the court held, 
 that there had been such a continuity of 
 cft'ort for the safety of ship and cargo from
 
 1. FOEEIGN OEDINANCES. 501 
 
 [oue wlio is interested in the welfare of any part of tlie adventurej Chap. 1. 
 
 the time of the conimenccmeiit of the dis- 
 cliarge of the cargo, until the sliip itself 
 \\as got off, as brought those expenses 
 within the principle on which general aver- 
 age contribution rests. [In Waltheio v. 
 Mavrojanl, 39 L. J. Ex. 81, it was held 
 that, if goods be landed fi-om a stranded 
 ship, and deposited in a place of safety, 
 from whence they may be shipped again in 
 another vessel and carried to their destina- 
 tion, ^^■ithout greater expense to the owner 
 of the goods, or deterioration to the goods 
 themselves, so that it is indifferent to him 
 by what ship they go forward, extraordi- 
 nary expenses subsequently incurred in 
 lloating the stranded vessel do not consti- 
 tute general average to which the owner of 
 the cargo is bound to contribute, et per 
 Bkett, J. It seems to me that the deci- 
 sion in this case turns on the gi'ound that 
 at the time these expenses were incurred 
 the goods were in safety. In this case 
 observations were made upon Job v. Langton, 
 and Moran v. Jones. See Atttoood v. Sellar, 
 48 L. J. Q. B. 456; L. E. 4 Q. B. D. 342 j 
 5 Q. B. D. 286. Sewall v. United Ins. 
 Co., 10 Pick. U. S. Kep. 90; and Greel^v. 
 Tremont Ins. Co., 9 Cush.] 
 
 With respect to voluntary stranding : If 
 the master, for the preservation of ship and 
 cargo, when in danger of storm or capture, 
 run his ship on a rock, shallow, or strand, 
 and the ship be afterwards got off, the 
 damage thus voluntarily done to ship or 
 cargo, and the expense of recovering and 
 unladiug her, and the value of the goods 
 thrown overboard to enable her to float, 
 and so continue her voyage for the benefit 
 of all concerned, are properly general 
 average ; if the stranding be the result of 
 the ordinary perils of the sea, without any 
 sacrifice on the part of the master, the 
 expenses incurred must fall upon the ship 
 alone. Benecke, p. 215, illustrates this dis- 
 tinction by a case which happened within 
 his experience. A vessel, on her voyage 
 from London to Hamburgh, was driven liy 
 a high tide on a piece of grovnid called 
 the Grassbi'ock, very near the latter port. 
 The cargo was unladen, not with a view 
 to set the vessel afloat, but for delivery 
 to the consignees; and the ship was dug 
 out. The vessel in this case could not be 
 called upon to contribute to the unloading, 
 although she was accidentally benefited by 
 it; and there was no ground for contribution 
 by the owners of the cargo to the expense of 
 digging her out, because that was done for 
 her own benefit, it being of no consequence 
 to the consignees whether she were floated 
 or not. In this case it will be observed, that 
 
 the damage was the result of no voluntary 
 sacrifice ; the expenses were incurred for no 
 common object; and were not, therefore, 
 in their nature, general average. The rule 
 is, that if the stranding be voluntary, to 
 save the ship and cargo, the damage done 
 to the ship becomes a general average ; but 
 if it be involuntary, and the cargo be sa-\'ed, 
 in whole or in part, no general avei'age is 
 due. American edition, in notis, p. 349: Story. 
 
 But, supposing the cargo to be saved, and 
 the vessel totally lost by such voluntary 
 stranding, are the rescued goods to contri- 
 bute for the slii}) ? Upon this subject great 
 diversity of opinion exists among foreign 
 jurists. The question does not appear to 
 have ever directly arisen in our courts ; and, 
 although some English writers on the 
 Marine Law, Beawes, tit. Salvage, Malynes, 
 110, Molloy, book 2, ch. 6, sect. 12, Marsh, 
 537, 538, have detenniued it in the nega- 
 tive; their opinion has not obtained a 
 general or unqualified concurrence. 
 
 There are few points of maritime juris- 
 prudence on which an English lawyer will 
 find a reference to the American autho- 
 rities uninstructive, but on this the most 
 learned judges have diflered, and no rule 
 can be said to be finally established. In 
 this dearth of positive authority, the only 
 satisfactory course is to discuss the ques- 
 tion upon principle, and seek a solution of 
 the doubts which a variety of opinions 
 and regulations has created, in the letter 
 or the spirit of the Eliodian law. That the 
 cargo rescued from a vessel honestly stranded 
 and wrecked, should be free from contri- 
 bution to the loss of the shipowners, seems 
 at first view to savour of injustice. But a 
 voluntary sacrifice of the property of one 
 for the good of all, is the foundation of 
 the whole system of average Ominiiim 
 contributione sarciatur quod pro omnibus 
 datum est. L. 1. ff. de leg. llhod. ^qiiis- 
 siinum enim est, commune detrimentum fieri 
 eorum, qui proper amissas res aliorum con- 
 secufi sunt uf merces suas salvas habuerunt, 
 L. 2 § 1. ff. de cod. In the simplest illus- 
 tration of the rule the case of jettison, 
 unless the goods were voluntarily given for 
 the common safety, there is no contribution. 
 So in case of capture, goods must be given, 
 not taken, to found a contribution for 
 ransom. If contribution be claimed for a 
 mast or a cable cut, it must have heen given 
 for the safety of all. Repairs must fall 
 upon the owner, unless the damage was 
 submitted and given for the common good, 
 or the cost of reparation incurred for the 
 sake of the cargo alone. In the case of a 
 total wreck consequent upon a voluntary
 
 602 
 
 OF GENEEAL AVERAGE. 
 
 Part VI. [and eveiy such measure may be beneficial to almost all («) . In such 
 emergencies, therefore, when the mind of the brave is appalled, it is 
 lawful to have recourse to every mode of preservation, and to cast 
 out the goods in order to lighten the ship for the sake of all. But 
 if the ship and the residue of the cargo be saved from the peril 
 by the voluntary destruction or abandonment of part of the goods,] 
 
 strandiug, cau the ship bo said to have been 
 deliberately sacrificed ? lu the great majo- 
 rity of cases, certainly not. A vessel is not 
 stranded for the purpose of destruction j 
 that course is resorted to with the inten- 
 tion and in the hope of saving her from 
 imminent peril. The sacrifice really in- 
 tended to be made is, in most cases, the 
 cost of the damage which may be expected 
 from the strandiiig and the expense of 
 getting the vessel off : the total loss is 
 occasioned by circumstances M-hich were 
 not foreseen when the stranding was deter- 
 mined on. Emerigon expressly tells iis, 
 that the damage resulting from the strand- 
 ing of the ship, if the stranding be done 
 \'oluntarily for the common safety, is 
 general average, provided the ship be 
 again set afloat ; for if the stranding be 
 followed by shipwreck, then res perit do- 
 mino, and it is "save who can." Dig. 14, 
 2, 5. Emerigon, torn. 1, pp. 614, 616. 
 Valin, Com. sur I'Ordonnance, du Jet et de 
 la Contribution, liv. 3, tit. 8, art. 17; 
 Cleirac, Jngemens d'Oleron, p. 42 ; Eoccus, 
 De Navibus et Naulo, not., are all of the 
 same opinion. Bynkcrshoek, on the other 
 hand, cites and disapproves, Qurcstiones, 
 Jur. Priv. lib. 4, c. 21, of a decision of the 
 maritime judges of Amsterdam, in which 
 they held that there is to be no contribution 
 unless the ship voluntarily run ashore, be 
 saved. "N'oet, Com. ad. Pand. lib. 14, tit. 2, 
 sect. 5, also, in his commentaries on the 
 Ixoman law, admits contribution in the case 
 of a ship run ashore for the preservation 
 of the cargo, and the ship lost. Story, 
 referring to the conflicting decisions of the 
 American courts, declines to pronounce 
 bct^vcen them. Notes to American edition, 
 p. 349. 
 
 When the (]uestion shall arise in our 
 courts, it would be presumptuous to pre- 
 dict, with confidence, what rule will be 
 adopted by them. Probably it may be 
 thought necessary to inquire what the pre- 
 cise intention of the master was, in putting 
 the ship ashore. The -siew above suggested 
 is in conformity with the judgment of the 
 Supreme Court of New York, delivered by 
 Chief Justice Ke>'t in the case of Brad- 
 Jiurd V. Colombian I?is. Co., 9 Johnson's 
 Rep. 9 ; but see contra Gray v. Wain, 2 
 Serg. & Rawl. 220, and Caze v. ReiUy, 3 
 "Washington Circuit Rep. 298. That the 
 
 l)rinciples which govern the American 
 courts on questions of general average arc 
 generally the same as with us, will appear 
 from the following case. The ship Pru- 
 dence, while waiting at Gibraltar for a wind 
 to proceed on her voyage to Cadiz, encoun- 
 tered a violent gale which caused her to 
 start her anchors, and was driving stern 
 foremost on a reef of rocks. The jib was 
 hoisted to make her pay round, with the 
 intention of putting to sea, but the sheet 
 having parted, this was found impractic- 
 able, and they were obliged to haul it down, 
 upon which the vessel became ungovern- 
 able. The master then cut the cable, and 
 put the helm hard up, in order to put her 
 ashore in the best place for the preservation 
 of the vessel and cargo, and of the lives of 
 the crew. She struck on the Ragged Staff, 
 about a quarter of a mile from the place 
 \vherc she would have grounded had not the 
 cables been cut, and she soon bilged, and 
 everything in the vessel was in a short time 
 afloat, both fore and aft. On the next day, 
 the masts were cut away to pre^■eut their 
 working through the bottom. On the 
 second day after the schooner went aground, 
 the gale having abated, lighters were em- 
 ployed to save a part of the cargo. The 
 schooner could not be got oft" and repaired 
 without incurring an expense much exceed- 
 ing her value when repaired. In a suit on 
 a policy, a total loss was claimed. Mr. 
 Justice Gibson delivered the opinion of 
 the com-t : " This v.ndoubtedly gives a claim 
 for general average for the cables, and 
 anchors, and masts, but for nothing else, 
 as nothing else was deliberately sacrificed. 
 An accidental loss that happens in cndea- 
 ■\ouring to bring about a very different 
 event is not the subject of compensation ; 
 and such would be the casualty of stranding 
 in endeavouring to get out to sea. It is 
 necessary that the loss should arise from 
 the direct agency of some one acting for 
 the general benefit. There must be a deli- 
 berate intention to sacrifice the thing at all 
 events, or at least to put it in a situation in 
 which the danger of eventual destruction 
 would be increased." Walker v. The United 
 States Ins. Co. 11 Serg. & Rawl. 61. But see 
 ]}ost, 512, note (c). This note, except the 
 parts within brackets, is by Mr. Justice Shee. 
 (a) [^Mouse's case, 12 Co. 63 ; mentioned 
 also in £ird v. Astock, 2 Bulst. 280.]
 
 2. WHAT LOSSES SUBJECT OF. 503 
 
 [equity requires that the safety of some should not ])c purchased Chap, 1. 
 
 at the expense of others, and therefore all must contribute to the 
 
 loss. 
 
 Many of the foreign ordinances (b) have prescribed various forms 
 to he adopted Avith respect to jettison; some of them have even 
 named the persons to be consulted before it takes place, and have set 
 down the phrases of consultation, and specified the sort of goods that 
 shall be first thrown ; and some authors have amused themselves by 
 dividing the act itself into the scA^eral species of regular and irre- 
 gular, formal and informal (c). But the regulations prescribed by 
 persons at ease in the closet or senate-house will seldom be followed 
 at the moment when life or liberty is in jeopardy; at such a moment, 
 every one present will exclaim, with the friend of Juvenal, Fimdite 
 qiue mea sunt — etiam pidcherrima ; and provided the jettison have 
 been the effect of danger and the cause of safety, all writers agree 
 that contribution ought to be made, although the forms have not been 
 complied with. Previous deliberation, if there be time to deliberate, 
 and a due choice of the heaviest and most cumbersome articles, may 
 be proofs of the necessity and propriety of the act ; but they are not 
 the only, and therefore ought not to be deemed the essential jiroofs {d) . 
 Indeed in this case, as in many others, too close a compliance with 
 forms at a period of supposed danger has very j ustly excited a suspi- 
 cion of fraud (e). In all cases, however, and in all countries, it is 
 justly required of the master that he clraAV up an account of the 
 jettison, and verify the same by the oath of himself and of some of 
 his crew, as soon as possible after his arrival at any port, that there 
 may be no opportunity to purloin goods from the ship, and then pre- 
 tend they were cast over in the hour of danger.] 
 
 2. Of the Losses for vihicli Contribution by General Average 
 shall be made. 
 
 In order to make jettison the subject of a general average contri- There must lu 
 bution, there must be a danger common to the whole adventure from commou 
 a maritime peril, and there must be an intentional sacrifice (/). ilangcr aud 
 
 If anything on board a ship, which is cut or cast away because it sacriticc. 
 is endangering the whole adventure, is in such a state or condition 
 that it must itself certainly be lost, although the rest of the adven- 
 
 (i) [Laws of Olcroii, arts. 8, 9 ; Ordiu. observation of Targa, who says, that duriug 
 
 of Wisbuy, arts. 20, 21, 38 ; French Ordin. sixty years in which he had been a magis- 
 
 liv. 3, tit. 8, Du Jet. arts. 1 — 4, and Valin trate at Genoa, conversant with tliis subject, 
 
 tliereon; Code de Com. art. 410, &c.] he had known only five instances of regular 
 
 (c) [See Emerigon, torn. 1, p. 605; Con- jettison, all of which were suspected of 
 
 solato del Mare, caps. 47 — 49.] fraud, because the forms had been too well 
 
 {d) [So decided in BerMey v. Presgrave, observed.] 
 
 1 East, 220, as to other cases of general (/) Johnson v. Chapman, 3o L, J. C. P. 
 
 average.] 23; 9 C. B. (n.s.) 563. 
 
 (e) [Emerigon, tom. 1 p. 605, cites an
 
 504 OF GENEPxAL AVEKAGE. 
 
 Part VI. lure should be saved -without tlic cutting or casting away, then the 
 
 destruction of the thing gives no claim for general average (a). 
 
 Mr. Justice Willes_, in delivering the judgment of the court in 
 Johnson v. Cluipnian, said, " I may mention, lest it should appear 
 that any confusion is likely to be introduced into the law by our 
 decision, that "we do not at all mean to throw doubt upon the pro- 
 prietv of the practice of average staters in disallowing for that which 
 can properly be called wreck. That appears to be a very general 
 practice, and it is a practice which has found its way into the Treatise 
 upon the subject. The question is, What is wTeck ? In order to make 
 jettison the subject of a general average contribution, two conditions 
 must be fulfilled. First of all, there must be common danger. It 
 must be a maritime peril, and it must be common to the whole adven- 
 ture, which would exclude some of the cases which Mr. Cohen very 
 ingeniously put, of a subject matter that had within itself the elements 
 of destruction, which developed themselves during the storm, as, for 
 instance, cotton, which was brought on board in a damp state, burst- 
 ing out into a flame, and being thrown overboard. You cannot say 
 there is a common danger, but a peculiar danger fi'om the fault of 
 the person putting it on board ; and then, secondly, there must be a 
 sacrifice in the sense of intentional sacrifice. That is a second con- 
 dition which must be fulfilled ; and that seems to exclude all those 
 cases in which the average-staters ought to refuse to allow a contri- 
 bution upon the ground of wreck. Certainly, the reasoning is all 
 consistent. All the writers in this country and abroad appear to be 
 agreed that the question is, whether there is common danger, and 
 whether there is voluntary sacrifice ? They are not all agreed, it 
 miist be admitted, upon the application in practice of these rules. 
 But there is one case upon which our average-staters appear to be 
 agreed — that is to say, if" a mast were sprung, and a part of it were 
 to go overboard with a quantity of spars and sails attached to it, 
 hanging on by a stay which must give way in a minute or two, whilst, 
 in the meantime, by battering against the side of the vessel, it adds 
 to the danger ; and if the stay were cut to let it go at once, it Avould 
 be very diflScult to say that that was anything more than wreck. 
 A lawyer could not lay down, as a matter of pure law, that all 
 cumber cut loose is Avreck. But what I say is, if it was virtually 
 lost, if not recoverable, if the act of cutting the rope was only hasten- 
 ing the moment at which it would be lost, you Avould properly call 
 that wreck, and you would not say it was general average. The 
 reason given is, because you cannot keep it. There is no intentional 
 sacrifice in cutting it away. You must lose it, and the losing it a 
 minute or two sooner can make all the difference of its doing great 
 inj ury or not ; but you cannot help losing it. But if, instead of 
 cutting away what is virtually lost only, you cut away a portion of 
 ■what is still on board and safe, except for the common danger, for 
 instance, a mast or bowsprit, for the purpose of facilitating the 
 
 (a) Shej)herd v. Kottgen, 47 L. J. C. P. 67, C. A. ; L. E. 2 C. P. D. 585.
 
 I 
 
 2. WHAT LOSSES SUBJECT OF. 505 
 
 getting rid of the wreck, which is only encuml)ering the vessel — if Chap. 1. 
 
 you do tliat^ you ought to receive average in respect of the portion 
 
 you so cut away, because that you do sacrifice. It may be it is 
 exceedingly difficult in some cases — one can conceive it must be — for 
 average-staters consistently to apply the principle ; but the principle 
 appears to be clear that, if the danger is common, and the thing is 
 voluntarily sacrificed, it is contributed for rateably." 
 
 [From the rule thus {ante, p. 498) established by the Rhodians, ^S^c^fji-o,,, 
 various corollaries have been deduced. Thus, if in the act of jettison, Kijodian law. 
 or in order to accomplish it, or in consequence of it, other goods in the 
 ship are broken, damaged, or destroyed the vakie of these also must be 
 included in the general contribution. So, if to aA'oid an impending 
 danger, or to repair the damage occasioned by a storm {b), the ship 
 be compelled to take refuge in a port to which it was not destined, 
 and into which it cannot enter without taking out a part of the cargo, 
 and the part taken out to lighten the ship on this occasion happen to 
 be lost in the barges employed to convey it to the shore, this loss, also 
 being occasioned by the removal of the goods for the general benefit, 
 must be repaired by general contribution ; but if, after the removal 
 of goods for such a purpose, the ship Avith the remaining cargo should 
 unfortunately perish, and the goods in the barges be saved, the pro- 
 prietors of the latter shall not contribute to the loss of the others, 
 because the safety thereof is not owing to that loss. So if, upon the 
 expectation of an hostile attack, part of the cargo be taken out and 
 sent away, and saved, and the ship with the remainder of the cargo 
 fall into the hands of the enemy, the part saved shall not contribute 
 to make good the loss (c) . 
 
 If part of the cargo be voluntarily, and without fraud or cowardice, l/^^'t of goods 
 delivered up to a pirate by way of composition or ransom, to induce S'^*^*^ '''^ 
 him to spare the vessel, and the residue o£ the goods (an event highly 
 improbable), or if a sum of money be agreed to be paid to a pirate by 
 way of ransom, all writers agreed that the value of the part ransomed 
 must contribute to this loss also ; but if the pirate, having over- 
 powered the ship, select for himself such parts of the cargo as best 
 suit his purposes, and plunder the ship of them, in this case there 
 shall be no contribution, because the value of these goods was not the 
 price of safety to others [d) . 
 
 The rule mentions goods only, but its principle extends also to the To jettison of 
 ship and its furniture ; and all that I have hitherto said respecting the ^i^'^'^ goo*^*^' 
 goods is to be understood also of the provisions, the guns, the boat, extends. 
 or other tackle of tlic ship : a fortiori, it is also to be understood of 
 goods belonging to the owner or master of the ship, as avcII as of 
 those belonging to the merchant. Emerigon illustrates the case of 
 the boat by the relation of a stratagem practised by one of his own] 
 
 {b) [In the Dig. 14, 2, 4, and the Guidon, (c) \_Sheppard v. Wright, 1 Shower, P. C. 
 
 eh. 5, art. 28, the rule is hiid down in 18.] 
 
 general terms, but most writers confine it {d) [Dig. 14-, 2, 2, 3. H'tclcs v, Palingion, 
 
 to the cases mentioned in the text. Sec Moore, 297. Wellwood, tit. 18.] As to 
 
 Beawes, 165 ; 2 Valin, 167 ; yet sec Well- ransom in case of capture by an enemy, 
 
 wood, tit. 20.] see ante, p. 20.
 
 506 OF GEXEKAL AVEEAGE. 
 
 Part VI. [countrymen. The master o£ a Freucli vessel, having been pursued 
 for several hours hy two frigates, and having also his flight inter- 
 cepted by the appearance of two other vessels a-head, hoisted, as 
 soon as it became dark, his boat into the sea, furnished Avith a mast 
 and sail, and a lantern at the mast-head, and then changed his 
 course and sailed during the wdiole night without any light on board 
 his own ship ; in the morning no enemy was in sight. The value 
 of the boat thus abandoned was made good by general contribu- 
 tion {a). 
 
 I If the master, compelled by necessity, cut his cable from the auchor 
 in order to use it as a hawser, or if he cut away and abandon his 
 masts, sails, or cables, to lighten and preserve the ship, their value 
 must be made good by contribution (b) . 
 
 In like manner (c), the damage voluntarily done to a ship by cut- 
 ting its deck or sides, in order to facilitate a necessary jettison, or by 
 running it on a rock, shallow, or strand, to avoid the danger of a 
 storm or of an enemy, and the expense of recovering the ship from 
 this latter situation [d], and also the pilotage, port dues, and other 
 charges incurred by taking a ship into a port to avoid an impending 
 peril, and the expense of extraordinary assistance (e) to preserve and 
 secure a ship from the violence of a storm at its entrance into the 
 port of destination, are to be sustained by a general contribution.] 
 
 But the jettison must be for the purpose of escape, or of saving the 
 ship and cargo, by lightening her and increasing her speed (/). 
 
 [If sails are blown away, or masts or cables broken by the violence 
 of the wind, the owner must alone bear the loss {(/) . The broken tools 
 of an artificer bring no charge upon his employer.] 
 
 (rt) [Emerigou, torn. 1, p. 622. See Price stroyed. By means of her screw and her 
 
 V. Noile, 4 Taunt. 123,] where a ship was steam-power she reached Kio. The expense 
 
 captured by au enemy and the goods were of repairing her at Kio would have been so 
 
 thrown overboard whilst in his possession, great, that the master properly determined 
 
 and the ship was afterwards recaptured. to have her temporarily repaii'ed, so as to 
 
 {I) \_Berkley v. Presgrave, 1 East. 220. bring her home under steam. It was neces- 
 ^larshani v. Diitrei/, Select Cases of Evi- sary for this purpose to purchase coals at 
 deuce, p. 58. Dig. 14, 2, 3, 5.] Ordon. Eio and at Fayal, and the ship eventually 
 Avaries, art. 2. Code de Com. art. 400, reached home. The defendants were the 
 num. 3, 4. See Robin-son v. Price, 46 owners of a quantity of gold on board the 
 L. J. Q. B. 22, 551, where, in an action ship, and an action was brought against 
 brought by the shipowner against the them by the shipowner to recover the con- 
 owner of cargo for a general average con- tribution to general average alleged to be 
 tributioD, it was held that the former -va as due from them in respect of the expense 
 entitled to recover in respect of certain incurred in obtaining coals at Rio and 
 spars and cargo which had been used as Fayal — Seld, that the action was not main- 
 fuel for a donkey-engine, in order to keep tainable, as there was no right to charge 
 the ship afloat after she had sprung a leak, this expense to general average. Wilson v. 
 caused by severe weather — the ship had at Bank of Victoiia, 36 L, J. Q. B. 89; 
 the time of sailing a reasonable supply of L. R. 2 Q. B. 203. 
 fuel for the donkey-engiue. See Harrison (c) Dig. 14, 2, 2, 1. 
 v. Bank of Australia, 41 L. J. Ex. 36; {d) [Laws of Wisbuv, art. 55. MoUoy, 
 L. R. 7 Ex. 39. book 2, ch. 6, sect. 15."^ And see Beawes, 
 
 A clipper sailing-ship, fitted with an p. 165; and Wellwood, tit. 20.] As to 
 
 auxiliary screw, being on her voyage from voluntary stranding, see ante, p. 501, n. 
 
 Melbourne to England, came into collision (e) \_Berklei/ v. Presgrare, 1 East. 220.] 
 
 with an iceberg, and received such damage (/) Butler v. Wildman, 3 B. & Aid. 398. 
 
 that her sailing power was practically de- {</) Digest, 14, 2, 2.
 
 2. WHAT LOSSES SUBJECT 01'. 507 
 
 A ship had struck to a privateer, who, the wind blowing fresh at Chap. 1. 
 
 the time, Avas unable to board his prize. The merchantman, by hoist- 
 
 ing an extraordinary press of sail, effected her escape ; but in so 
 doing was much strained and otherwise injured, and had her main- 
 mast carried aAvay. The damage so done was held not to be general 
 average, for the loss was a common sea-risk. The master did no 
 more than his strict duty to his owners in endeavouring to escape, 
 and no sacrifice was made for the benefit of the cargo {h) . And the 
 decision was the same in respect of damage occasioned to a ship and 
 her tackle, by standing out to sea with a press of sail in tempestuous 
 weather, to avoid the impending peril of being driven on shore and 
 stranded (i). 
 
 Upon the same principles was decided the case of Taylor v. Curtis {k), 
 by the Court of Common Pleas. The ship Hibernia sailed on a 
 voyage under protection of convoy. In consequence of a hurricane, 
 she was separated from the convoy, and fell in Avitli an American 
 privateer. Her captain, seeing no prospect of escape, resolved on 
 resistance. After a conflict of eleven hours, in which the hull and 
 rigging of the Hibernia was greatly damaged, one of her crew killed, 
 and some wounded, she succeeded in beating off the privateer. 
 Arrived at St. Thomas's almost a wreck, and delivered her cargo to 
 the consignees. The value of the entire cargo was 21,092/.; the 
 damage and expense to the shipowners, including medicines and sur- 
 gical aid for the Avounded, Avas 2,098/, Avhich they claimed in this 
 action as general average. But the court felt bound to refuse the 
 claim. "The losses,-" said Gibbs, C. J., "for which the plaintiffs 
 seek to recover this contribution are of three descriptions : — 1. The 
 damage sustained by the hull and rigging of the vessel, and the cost 
 of her repairs. 2. The expense of the cure of the Avounds received 
 by the crew in defending the A'cssel. 3. The expenditure of powder 
 and shot in the engagement. The measure of resisting the privateer 
 Avas for the general benefit; but it was a part of the adventure. No 
 particular part of the property was voluntarily sacrificed for the pro- 
 tection of the rest. The losses fell where the fortune of Avar cast 
 them, and there, it seems to me, they ought to rest.'' 
 
 As to damage done by stranding, see ante, pp. 500, 501, n., and Stranding of 
 506. See Letchford v. Oldham, 49 L. J. Q. B. 458, Avherc it was '^"l'' 
 held that a ship had been stranded within the meaning of a policy. 
 
 Where a bill of lading contained an exception of "fire on board," J^.-^^ceptioii in 
 and the goods carried under it were injured in consequence of the ^^ ° 'icuy- 
 Avater used to extinguish a fire occurring during the voyage — Held, 
 that the exception did not exempt the shipoAvners from liability to 
 contribution in general average tOAvards the loss sustained by the 
 owner of the goods so injured. Nor Avere they exempted by A'irtue of 
 sect. 503 of the M. S. Act, 1854. The exception in the bill of 
 lading and the above section of the Act had reference only to the 
 
 (/t) Co i-<H^!fo;iV. JSoZ-cr^j, 2 New Rep. 378. {Jc) 6 Taunt. 608. But see upon this 
 
 (/) Power V. WhUmore, 4 M. & S. 141. case, Phillips ou Insurance, vol. 1, p. 337 j 
 
 HeaDenty. Smith, 38 L. J. Q. B. 145 j and Benecke on Insurance, p. 280. 
 
 L. R. 4 Q. B. D, 414.
 
 508 
 
 or GENEEAL AVE E AGE. 
 
 Part VI. obligation on the contract to deliver the goods, and did not take 
 
 away the ordinary liability of the shijiowncr to contribute in general 
 
 average, as owner, when a fire had occiu'red and a sacrifice had been 
 properly made to save the whole adventure (a). 
 
 3. Of Ship's Expenses in a Port of Refuye. 
 
 And not only may the loss of goods become the subject of general 
 contribution, but also, in some cases, the expense incurred in relation 
 to them {b). Thus, if it be necessary to unlade the goods, in order to 
 repair the damage done to a ship by tempest, or hy collision ivith 
 another vessel, so as to enable her to prosecute and complete her 
 voyage, it has been held (c) that the expense of unlading, w^are- 
 housiug, and re-shipping the goods should be sustained by general 
 contribution, because all persons are interested in the execution of 
 the measures necessary to the completion of the voyage [d) . 
 
 (ffl) Schmidt v. Soi/al Mail Steamship 
 Co., 45 L. J. Q. B. 646. See Stewart v. 
 West India and Pacific Steamship Co., 42 
 L. J. Q. B. 84, 191 ; L. B. 8 Q. B. 88, a 
 case decided in 1872 as to the iiicaniug of 
 a bill of lading, which contained the words 
 " average, if any, to be adjusted in accord- 
 ance to British custom." 
 
 (6) The Copenhar/en, 1 Rob. Ad. Rep. 
 289. Da Costa v. yewnham, 2 Term Rep. 
 407 ; the Gratitudine, 3 Rob. Ad. Rep. 257. 
 
 (f) Plummer v. Wildman, 3 M. & S. 482. 
 
 (f?) This paragraph, altered after the 
 detennination of the case last cited, from a 
 paragraph in the fourth edition, by the 
 addition of the words in italics, and the 
 substitution of the words "it has been 
 held" for the words "it seems," appears 
 in the fifth edition of this treatise, the 
 latest of those published in Lord Textek- 
 Den's life time. AVlien first composed it 
 was a studiously cautious notice of the 
 decisions iu the Court of Admiralty, and 
 reads, as above altered, more like a deferen- 
 tial notice of judgments recently pro- 
 nounced by judges of eminent authority, 
 than a confident expression of a matured 
 and satisfactorily formed opinion. On re- 
 ference to the extract from the fourth 
 edition, set out iu note (c), post, p. 516, 
 there can be little doubt that Lord Tex- 
 TEEDEJT considered that the essential in- 
 gredient of general average, a voluntary 
 sacrifice or an expenditure necessitated by 
 a deviation or other act done, or resolution 
 taken, in time of peril, for the common 
 safety, had been wanting in all these 
 cases. The judgments of Wilde, C. J., and 
 Chessweli, J., in Hallett v. TFigram, 9 
 C. B. 580, show that, as a general propo- 
 sition, the reason assigned in the last two 
 lines of the paragra))h for the doctrine 
 
 which is stated in it to have been laid down, 
 is much too large. And yet, in the later 
 case of Sail v. Janson, 4 E. & B. 500; 24 
 L. J. Q. B. 97, with a protest certainly that 
 nothing inconsistent with the judgments in 
 Powerv. Whitmore,post,-p.blO, note (^) and 
 Hallett V. Wif/ram, was intended, it was 
 lield by Lord Campbell and the Court of 
 Queen's Bench, that expenses necessarily 
 incurred in unloading or reloading cargo 
 for the purpose of repaii-ing a ship damaged 
 by storm, that she might be made capable 
 of proceeding on her voyage, give a claim 
 to general average contribution, because 
 the acts, i.e. the loading and miloadiug, 
 which occasion those expenses, become 
 necessary from jjerils insured agahist, — a 
 reason, the exact bearing of which is not 
 manifest, — and because tliei/ are deliberately 
 done for the Joint benefit of those who are 
 interested in the ship, the cargo, and the 
 freight. In support of this doctrine, Lord 
 Campbell cites the authorities relied upon 
 for it by Mr. Arnould, viz., Stevens on 
 Average, 22 & 23, 5th edit. The Copen- 
 hagen, 1 Rob. 298, and a dictum of Le 
 Bla>'C, J., \\\ Plummer \. Wildman: "The 
 unloading may be general average if it were 
 necessary to repair the shij:)." Beneckc, 
 p. 193, on the other hand, more con- 
 sistently with principle, contends that such 
 charges are not general average. "Even," 
 he says, "if the unloading were resorted to 
 merely for the purpose of repairing the 
 vessel, still it being the natural consequence 
 of a particular average, and, taking place 
 after the ship and cargo in safety, it could 
 not be a general average. It would also," 
 he adds, "strictly speaking, be wrong to 
 apjjortion the charges of loading and re- 
 loading, warehouse rent, (Sec, among the 
 respective owners of the cargo, according
 
 3. ship's expenses in poet op refuge. 
 
 509 
 
 The expenses incurred in a port in wMcli a vessel may have taken 
 refuge during the voyage,, by repairing the damage done to the ship 
 by tempest alone seems, mth propriety^ to fall upon the owners, and 
 is so held in the civil law (e), and by many foreign writers. And 
 although the decision in the Court of King^s Bench in the case of 
 Da Costa v. Neivnham, has been considered as an authority for a con- 
 trary doctrine, yet, in my humble judgment, the facts upon which 
 that decision was founded do not warrant such a conclusion (/) . 
 
 Yet, in the case which has been referred to, where the master 
 of a ship was under the necessity of cutting away part of his rigging, 
 in consequence of collision with another vessel that was driven against 
 him in a storm, and of returning to the place of his departure to 
 repair the damage occasioned by the collision, and of unlading his 
 cargo there for the purpose of such repairs, it was held that the 
 expense of so much of the repair as Avas absolutely necessary for 
 the performance of the voyage, including the necessary expense of 
 unloading, should be made good by a general average {g) . 
 
 Chap. 1. 
 
 to the value of the goods (as is always done 
 iu general average), because the o\raer of 
 valuable goods iu a narrow compass cannot 
 be obliged to bear an equal share in those 
 charges M'ith the proprietor of bulky 
 articles of small value." 3£i: Justice Shee. 
 Where a vessel goes into a port of refuge, 
 iu consequence of an injury to her which is 
 itself the subject of general average, the 
 expenses of warehousing and reloading 
 goods necessarily i;nloaded for the purpose 
 of repairing the injury, and expenses in- 
 cuiTed for pilotage and other charges on the 
 vessel leaving the port, are also the subject 
 of general average. Attwood v. Sellar, 
 L. K. 5 Q. B. D. 286; 48 L. J. Q. B. 465; 
 ante, 501 : see Sill v. Wilson, L. R. 4 
 C. P. D. 329, where there was a temporary 
 suspension of the voyage for the purpose of 
 repairing the ship at a port of refuge. 
 
 (e) Dig. 14, 2, 6. Emerigon, torn. 1, 
 p. 265. 
 
 (/) 2 Term Eep. K. B.p. 407. 
 
 {(/) Plummer v. Wildman, 3 Maule & 
 Selwyn, 482. This was an action by the 
 owners of the ship Cambridge against the 
 freighters, to recover contribution to a 
 general average under the following circum- 
 stances : — The ship sailed ^vith a cai-go of 
 sugar and rum from Kingston, in Jamaica, 
 to London. In the course of the voyage, a 
 brig was unavoidably driven against her by 
 the violence of the wind and sea, by which 
 accident her stern and knees were broken, 
 and the master was in consequence obliged 
 to cut away part of the rigging, and to 
 return to Kingston, to repair the damage 
 sustained by the collision and the cutting 
 away. The ship could not have pi'osecuted 
 her voyage, nor could she have kept the sea 
 with safety, without returning and repair- 
 ing. Upon her return, the cargo was 
 
 necessarily relanded and warehoused, in 
 order that such temporary repairs might 
 be done as would enable her to prosecute 
 her voyage. Upon the return of the vessel 
 to London, the owners made a demand upon 
 the freighter for his share of general 
 average, including in such demand the 
 expense of pilotage into Kingston, his own 
 expenses in port, the expense of procuring 
 mariners to replace deserters, the surveyor's 
 bill for ascertaining the damage, the cost 
 of loading and unloading the cargo, the 
 wages and provisions of the crew, and the 
 amount of repairs. Lord Ellexboeough 
 said, " If the retui'u to port was uecessarj' 
 for the general safety of the whole concern, 
 the expenses unavoidably incurred by such 
 necessity might be considered as a general 
 average. It is not so mucli a question 
 ichetlier the first cause of the damage ivas 
 owing to this or that accident, to the 
 violence of the elements, or the collision 
 with another ship, as lohether the effect 
 produced ivas such as to incapacitate the 
 ship, loithout endangering the whole con- 
 cern, from furtlier prosecuting her voyage, 
 unless she returned to piort and removed 
 the impediment. As far as removing the 
 incapacity is concerned, all are equally 
 henefited hy it, and therefore it seems 
 reasonable that all should contribute 
 toioards the expense of it ; l)ut if any 
 benefit ultra the mere removal of this in- 
 capacity should have accrued to the ship by 
 the rejDairs done, inasmuch as that will 
 redound to the particular benefit of the 
 shipowner only, it will not come under the 
 head of general average, but will be a 
 matter of calculation upon the adjustment. 
 The amount of the expenses of repairing to 
 be placed to the account of general contri- 
 bution must be strictlv confined to the
 
 510 
 
 OF GENERAL AVEEAGE. 
 
 Part VI. [A doubt Mas formerly eutertaiued as to the expenses of a sliip in a 
 port ill which she had taken refuge to repair the damage occasioned] 
 
 necessity of the case, to the enabling the 
 ship with her cargo to prosecute the voyage. 
 As to the charge for the captain's expenses, 
 during the unloading, repairing, and reload- 
 ing, the shipowner must bear the captain's 
 expenses in port, and crimpagc must be 
 disallowed ; it does not conic under general 
 average." Mr. Justice Bayley said, " I 
 doubt whether the repair of any particular 
 damage can be placed to the account of 
 general average, inasnuich as it is a benefit 
 done to the ship, and if the captain coidd 
 make it a general average by putting into 
 port to repair, it would always be his 
 interest to endeavour to do so. If, how- 
 ever, the repairs were merely such as were 
 necessary to enable the ship to prosecute 
 her voyage home, and were afterwards of 
 no benefit to the ship, such repairs, I think, 
 would properly come under a general 
 average. Therefore, deducting a benetit, if 
 anj', which 'still results' to the ship from 
 such repair, the rest may be placed to the 
 account of general average." ISecWaltJieio 
 V. Mavrojani, 39 L. J.'^ Ex. 81; L. E. 5 
 Ex. IIG.] 
 
 Upon these judgments it has been ob- 
 served, that repairs done to a vessel are 
 always a benefit to her, and doubted whether, 
 according to the above distinction, any part 
 of those repairs which in themselves are of 
 the nature of a particular average could 
 ever be construed into a general average, 
 Benecke, ch. 5, p. 107; but the justice of 
 this criticism, as respects the distinction 
 itself, by no means an unimportant one, 
 cannot be admitted. Lord Ellexborough 
 expressly excludes from general average 
 such repai rs as are productive of a lasting 
 benefit to the ship, and Mr. Justice Bayley 
 carefully distinguishes between repairs 
 which ai-e afterwards of no benefit to the 
 ship and those from which benefit still 
 results to it — both confining the admission 
 of repairs under general average to such 
 only as are temporary in their nature, and 
 necessary to the jirosecution of the voyage. 
 Repaii-s sufficient to enable a ship to com- 
 plete her voyage, although mere make- 
 shifts, wholly insufficient as respects the 
 ship's seaworthiness for a new voyage, may, 
 as respects the voyage in course of prose- 
 cution, the safe delivery of the cargo at its 
 destination, and the earning of freight, be 
 atleqnate for those objects. The more 
 serious exceptiDii to the case arises u]X)n 
 ( the words of Lord Eliexborocgii's judg- 
 ment above printed in italics, which have 
 been relied upon in the American courts as 
 authority for the position, that expenses 
 and rcpaii-s rendered necessary by sea 
 
 damage, in its nature a particular average 
 only, may, if necessary for the prosecution 
 of the voyage, found a claim for general 
 avei-age contribution. That this was not 
 the deliberate opinion of Lord Ellen- 
 BOROrGn seems clear ,'from his judgment 
 in the case of Poire;' v. Whit more, 4 M. & S. 
 141, which was determined shortly after. 
 It was an action on a policy of assurance on 
 goods, in which the merchant sought to 
 recover from the uuder-WTiters a sum of 
 money, which he had been compelled by a 
 court in Portugal to pay by way of general 
 average and contribution to the expense in- 
 curred by a captain in ^vages, provisions, 
 and repairs, under the following circum- 
 stances :— 
 
 The ship sailed with the goods from Lon- 
 don upon her voyage, encountered strong 
 and a(herse winds, and it was discovereil, 
 while in sight of the English coast, that the 
 bowsprit bitts had given way, occasioned by 
 the heavy labom-ing of the ship then under 
 her courses, beating to windward in a most 
 liea\y and dangerous sea. The master, 
 being apprehensive that the ship, if she 
 continued in that situation, would be in 
 great danger, judged it prudent, after hav- 
 ing consulted with the officers, to put into 
 port, for the purpose of securing the bow- 
 sprit, and accordingly brought his ship to 
 anchor in Cowes Roads. All the damage 
 was occasioned by the tempestuous winds 
 and weather, and heavy seas, and the put- 
 ting into Cowes was a prudent and proper 
 measure, necessaiy for the safety of ship and 
 cargo. The question uas, if the plaiutilV 
 could recover his contribution to the amount 
 expended for wages and provisions during 
 the stay at Cowes, for the purpose of repair, 
 as generid average. Lord Ellexborocgii 
 said, " General averag» must lay Us found- 
 ation in a sacrifice of part for the sake of 
 the rest, but here teas no sacrifice of ani/ 
 part Iti the master, hut only of his time 
 and patience, and the damage incurred was 
 by the violence of the wind and tveather. 
 This is not like the case recently before the 
 court, where the master was compelled to 
 cut away his rigging in order to preserve 
 the ship, and afterwards put into port to 
 repair that which he had sacrificed." In 
 Plummer v. Wildman, the damaged repaired 
 was caused in part by sacrifice, consequent 
 upon other damage not the subjectof general 
 average contribution, but such as having 
 been occasioned by tempest alone, would, 
 according to the opinion expressed by Lord 
 Tenterdex, in the second paragraph of 
 this section, fall properly upon the owners. 
 The In-eakage of the ship's stern and knees
 
 3. ship's expenses in poet op eefuge. 
 
 511 
 
 [by tempest ; but this has been removed by a decision, and it has 
 been held that the wages and provisions of the crew during such 
 a period must fall upon the ship alone («) . So in the case of col- 
 lision, that has just been mentioned, it was held that the expenses 
 of the master during the repairs, and of providing other seamen 
 to replace deserters, must be sustained by the owner alone {b). But 
 if a ship should necessarily go into an intermediate port, for the 
 purpose only of repairing such a damage as is in itself a proper 
 object of general contribution, possibly the wages, &c., during the 
 period of such a detention may also be held to be general average, 
 on the ground that the accessory should follow the nature of its 
 principal (c) .] 
 
 Chap. 1. 
 
 by the collision was clearly witliin this cate- 
 gory ; and if, at the moment of the collision, 
 the cutting away of the rigging was neces- 
 sary for the extrication of the ship from the 
 brig driven against her, the cutting of it 
 away seems not distinguishable in its legal 
 character from the other damage; other- 
 wise, if a new danger had aiisen and anew 
 sacrifice of the damaged rigging to avert it 
 was made. In America, the rule is stated 
 by Mr. Justice Stoet, American edition, 
 p. 350, to be definitively settled in the 
 principal commercial states, that what- 
 ever be the nature of the injury, whether 
 arising from a voluntary sacrifice or a mere 
 ]ieril of the sea, the wages and provisions of 
 the crew from the time of putting away for 
 the port, the expense of loading and un- 
 loading, and every other expense necessarily 
 incurred during the detention for the benefit 
 of all concerned, are to come under general 
 average. That learned judge says, that the 
 reasoning of the American courts follows 
 out the doctrine of Lord Ellenboeoitgii 
 in Phimmer v. Wildman. He says, also, 
 that the subsequent case of Potuer v. Whit- 
 more, 4 M. & S. 141, has been shaken, 
 if not overturned, by the more recent 
 decision of Simoncls v. White, 3 B. & C. 
 805, and sets out a passage from Lord 
 Tenteeden's judgment in that case, which 
 does not seem to warrant the inference 
 drawn from it. 
 
 It results from the English decisions, that 
 if a vessel goes into port in consequence of 
 an injury which is itself the subject of 
 general average, such repairs as are abso- 
 lutely necessary to enable her to prosecute 
 her voyage, and the necessary expenses of 
 port-charges, wages, and provisions during 
 the stay, are to be considered as general 
 average ; but that if the injury was incurred 
 by the mere violence of the wind and 
 weather, without sacrifice on the part of 
 the owners for the benefit of all concerned, 
 it falls, with the expenses consequent upon 
 if, within the contract of the shipowner 
 "to keep his vessel tight, staunch, and 
 
 strong," during the voyage for which she 
 is hired. See Sallett v. Wicjram, 9 C. B. 
 p. 580, in which the cases cited in the text, 
 and the law deduced from them in the last 
 paragraph of this note, are elaborately dis- 
 cussed by Wilde, C. J. — Note by Mr. Justice 
 Shee. [See remarks on the case of Power v. 
 Whitmore in Dent v. Smith, 38 L, J. Q. B. 
 144; L. E. 4Q. B. D. 414.] 
 
 («) Potver V. Whitmore, 4 M. & S, 141 ; 
 and see the Code de Commerce, art. 403, 
 No. 3, 
 
 {b) Phimmer v. Wildman, 3 M. & S. 
 482. 
 
 (c) Whether expenses, other than repairs 
 to the ship itself, not necessitated by, and 
 not the consequences of, acts voluntarily 
 done, or resolutions voluntarily taken for 
 the safety of life, ship, and cargo, in a time 
 of danger to life, ship, and cargo, but in- 
 curred after the necessity for the prosecu- 
 tion of the voyage of incurring them, has 
 been caused by a particular average, give a 
 claim to general average contriljution, is a 
 point on which a semhle of Lord Stowell, 
 in the case of the CopenharieU', 1 Rob. 294 ; 
 the judgment of Lord p]LLEXBOEOTTGn in 
 Plummer v. Wildman, 3 M. & S. ; the de- 
 cisions proceeding upon its authority in the 
 courts of the United States (Story's Edition 
 of this work, p. 350) ; the opinion of the 
 most eminent of living English writers on 
 the law of Marine Insurance ; and the 
 adoption of that opinion by Lord Campbell 
 and the Court of Queen's Bench, in the 
 case of Hall v. Janson, 4 E. & B., rather 
 than any carefully drawn inference from 
 admitted principle, have involved in some 
 uncertainty. 
 
 Mr. Arnould in his chapter on general 
 average, lays down two propositions : 
 
 1. Tliat before a party interested in a sea 
 adventure, can establish his claim to a 
 general average contribution, he must show 
 that the loss he has sustained has arisen, 
 not from any accident, but from some in- 
 tentional sacrifice, or voluntary expenditure. 
 judiciously incurred, other than those or-
 
 512 
 
 OF GEXEEAL AVEEAGE. 
 
 Part VI. A shipowner^ "wLo upon the stranding of his ship incurs trouble in 
 
 cllnary expenses of the navigation which 
 come under the head of wear and tear, and 
 resortetl to, for the safety of the whole ad- 
 venture, under the pressure of real and 
 innninent danger, as the sole means of 
 escaping destruction. Vol. 2, p. 903, 2nd 
 edition. 
 
 2. That extraordinarii expenses incurred 
 for the joint benefit of ship and cargo, i.e., 
 all expenses not included in the ordinary 
 disbiu-sements of the voyage, which are 
 necessaiy for keeping the ship in a proper 
 condition to transport the cargo, whetlier 
 such extraordinary expenses be the result 
 of general average, or of particular average 
 losses, gives a claim to general average con- 
 tribution. Vol. 2, p. 019. See Kemp v. 
 HalUday, L. E. 1 Q. B. 520; 31 L. J. Q. B. 
 233. 
 
 "It clearly," he adds, "follows, that 
 where a ship has either cut away her masts 
 or rigging, or has been so damaged hy a 
 storm, that it is necessary for the safety of 
 both ship and cargo to put into a port of 
 refuge, i.e., some port out of the course of 
 the voyage insured, for repairs, all the ex- 
 penses inseparably connected with the act of 
 first putting into, aud afterwards clearing 
 out of such port of distress, viz., port dues, 
 and sums paid in remuneration of service 
 rendered in bringing the ship into such a 
 port, and in clearing her out again, pilotage 
 and towage into the port of refuge, chai-ges 
 of taking ofl" anchors and cables, aud render- 
 ing assistance generally ; wages of people 
 employed to guard property during the re- 
 pairs, or to cut a way for the ship through 
 ice, in which she has become frozen up ; and 
 all expenses of unloading the cargo for the 
 purpose of ship's repairs, and of warehous- 
 ing aud reloading her, whether she put into 
 the port of distress in consequence of sea 
 damage, or to repair pui-posely inflicted 
 losses, give the shipowner a claim for ge- 
 neral average contribution — upon the plain 
 ground that these expenses are a necessary 
 consequence of an extraordinary measure 
 taken for the general preservation." 
 
 The first of these propositions is in strict 
 conformity with the definition of general 
 average sacrifice by Casaregis — Damnum 
 oh quod conirihutio facienda est, tale esse 
 dehet, ut rolunfaric sit iUatum, id est, aliquo 
 liominis facto, qui illud eligerit ut res 
 aliorum servarentur. Disc. 121, n. 3, and 
 with all that is stated by Lord Tentehdex, 
 as satisfactory to his own judgment, in the 
 text of this work. 
 
 The second, without the addition which 
 was probably intended, of the word vofun- 
 tarilif, and the addition which does not 
 appear to have been intended, of the words 
 and for the safety of ship and cargo under 
 
 the pressure of imminent danger to them, is 
 not supported by any passage of that text, or 
 of the text of Marshall, see 5th ed. p. 421 ; 
 and as to so much of the inference from it 
 as respects the expenses of a ship obliged, 
 on account of damage to it hy a storm, for 
 its own safety and the safety of the cargo, 
 to put into a port of refuge, there was, be- 
 fore the publication of Mr. Arnould's treatise, 
 no other authority in our English law, than J 
 a citation made by Bulleb, J., in Da Costa * 
 V. Xewnham, 2 Term Rep. p. 497, unneces- 
 sarily for the decision of that case, of a 
 passage in Beawes (De.v Mereatoria), the 
 inclination, for it was hardly more, of Lord 
 Stowell's mind in the case before referred 
 to, and the judgment of Lord Ellex- 
 BOBOrGH, in Flummer v. TFihhnan, 3 M. & 
 S., p. 482, recalled by him, in Fou-er v. 
 Whitmore, 4 M. & S. p. 141, almost as soon 
 as it had been pronounced. 
 
 It was evidently under the influence of 
 respect for the impressions of those eminent 
 judges, that Lord Texteedex sanctioned, 
 in the 5th edition of this work, the substi- 
 tution of the paragraph to which this note 
 is appended, for one which had appeared in 
 the preceding editions, as follows : — 
 
 "Upon another point relating to the 
 situation of a ship taking refuge in a port 
 to repair the damage occasioned by tempest, 
 in order to prosecute aud complete a voyage, 
 a reasonable doubt may be entertained, and 
 our law books furnish no decision. Some 
 writei's maintain generally that the wages 
 aud maintenauce of the crew dm-ing the 
 delay thus necessarily incuiTed for the 
 attainment of this object, are to be sus- 
 tained by general contribution. {Beawe-t, 
 166, Park, cap. 7, and JJmerigon, torn. 1, 
 p. 624.) But the principle upon which 
 general contribution is founded appears to 
 me to furnish a distinction proper to be 
 submittal to the consideration of the 
 reader. 
 
 " If the damage to be repaired be in itself 
 an object of contribution, it seems reason- 
 able that all expenses necessary, although 
 collateral to the reparation, should also be 
 objects of contribution, the accessory should 
 follow the nature of its principal. On the 
 other hand, if the damage itself be not sucii 
 as to be the object of contribution, by the 
 same rule neither ought the collateral ex- 
 l>enses incurred with reganl to the repairs, 
 to become so. In answer to this, it is urge<l 
 that, as the repairs are necessary to the 
 completion of the voyage, in the attainment 
 whereof all are interested, all ought to con- 
 tribute to the expense of the necessary delay. 
 But it should be remembered that it is the 
 duty of the owners not only to provide a m 
 
 stout and sufficient ship at the commence- ■
 
 3. ship's expenses in port op refuge. 513 
 
 arranging for the salvage^ forwardiugj and identification of the cargo, Chap. 1. 
 
 ment of the voyage, but also, as far as in 
 them Ues, to maintaiu the ship iu a perfect 
 condition during the whole course of the 
 voyage, and almost every charter-party con- 
 tains an express covenant to that effect. If, 
 indeed, the ship be not woi'th all the charges, 
 as well direct as collateral, a consideration 
 wholly different maj- arise; but, assuming 
 the ship to be worth the expense, why 
 slionld the merchant be charged in any 
 shape towards the performance of a duty 
 incumbent on the owner ? What is here 
 offered as to wages and maintenance may 
 apply also to port charges and other duties 
 of a like nature on the same account, and 
 also to the value of a part of the cargo that 
 may happen to be sold by the master to 
 defray the expense of the repairs." 
 
 Tlie doctrine that extraordinary expenses 
 for the Joint benefit of ship and cargo, other 
 than repairs of the ship itself, maj-, ?/ neces- 
 ■tari/ to tlie prosecution of the voyage, 
 although necessitatetl by sea damage only, 
 found a claim for general average contribu- 
 tion, seems clearly traceable to a construc- 
 tion put by Emerigon upon the 2ud Article 
 of the 2nd section of the French Ordinance 
 (leu Ai-aries, liv. 3, tit. 7. 
 
 Les depenses extraordinaires faites j)our 
 le Idtiment sent, ou ])our les marchandises 
 setdemenf, sont avaries particuUeres : les 
 depenses extraordinaires faites, et le dom- 
 mage souffert pour le bieii et le salut 
 commun des marchandises et du navire, sont 
 avaries yrosses et communes. 
 
 In his commentary upon this article, vol. 
 1, p. 625, he says, that if a ship damaged by 
 a storm is obliged to seek a port of refuge 
 for repairs, the time lost during the repairs, 
 the expense of unloading and reloading 
 the cargo, and the wages and provisions of 
 the crew, were allowed in his day by the 
 Amiraiites of Marseilles and of other 
 French ports, to be the subject of general 
 average contribution. He admits this prac- 
 tice to be at variance with the rule of the 
 Civil Law, 6 ff., de lege Pvhodia, which he 
 had just before cited, and with the doc- 
 trine of the highest authorities, to v\-hose 
 works be refers on the general law mari- 
 time, but vindicates or apologizes for it as 
 follows : — 
 
 " If the ship were not repaired in the port 
 of refuge, it would continue unnav-igable, 
 which would be a great prejudice to the 
 cargo. These expenses, therefore, are in- 
 cuiTed for the common good and safety." 
 
 Is it not plain that, but for the letter of 
 the article, which expressly excludes ship's 
 repairs, this reasoning would be equally ap- 
 plicable to them ? 
 
 Notwithstanding the frequent citations 
 
 3l 
 
 by Lord Texteedex from the French 
 Ordinance, in every chapter of this treatise, 
 it is remarkable that he makes no mention 
 of this second article of the title des Avaries, 
 and refers in a note to that part only of 
 Emerigon's commentary upon it, in which 
 he states the rule of the Ehodian and Civil 
 Law. It being clear, from this reference, 
 that neither the article nor the commentary 
 had escaped his notice, how account for his 
 silence respecting them, except upon the 
 supposition, which his observations on fo- 
 reign ordinances and treatises generally, in 
 the first section of this chapter appear to 
 countenance, that the article was not 
 thought by him, if rightly interpreted by 
 Emerigon, to contain, as the articles of the 
 French ordinance for the most part do, an 
 accurate expression of the law maritime ? 
 
 To Mr. Ai-nould's second proposition, the 
 use in it, as a distinctive epithet, of the 
 word extraordinary, and the indefiniteness 
 of that word, without the context, which, 
 in the French Ordinance, explains its meiiu- 
 ing, are serious objections. 
 
 The admissibility of expenses into the 
 category of general average, must rest on 
 the same principle as the admissibility of 
 sacrifices. General average sacrifices are 
 losses, of which the mind and agency of 
 man are the realizing cause; imminent 
 peril to life, ship and cargo, the occasion. 
 Expenditure, the unavoidable consequence 
 of an act, resoi't to a port of refuge, e.g. 
 voted or resolved upon, along with, and as 
 an accessory to the act, for the safety of 
 ship and cargo in time of danger to them, 
 is also manifestly a loss, of which the mind 
 and agency of man are the realizing cause, 
 imminent peril the occasion. By what 
 test other than this of the mind and agency 
 of man, proceeding exceptionallj' as res- 
 pects his ordinary duty, being their realizing 
 cause, is the extraordinary character ot 
 exjienses to be recognized ? Is the sudden, 
 unforeseen, not caused by any voluntary act, 
 misfortune, of a leak sprung by a ship, 
 necessitating resort out of the ship's course, 
 to a port of refuge, and expenses in it, a 
 cause so extraordinary, as to make its 
 accessories, the expenses incurred in a port 
 of refuge, also extraordinary within the 
 rule propounded, or must the leak be, as 
 Mr. Arnould says, a damage by storm ? 
 And if so, by any kind of storm, anywhere, 
 or only by a storm of unusual and un- 
 seasonable violence and duration, in the sea 
 or latitude iu which it occurs, an extraor- 
 dinary hun-icane, pampero, cyclone ? Is it 
 enough that the storm should be extra- 
 ordinary in respect of the costly and exten- 
 sive damage occasioned by it in the drifting,
 
 514 
 
 op GENERAL AVERAGE. 
 
 P art V I. and in tlie distribution of the proceeds of the sale of the unidentified 
 portions of tlie cargo among tlic consignees^ is not entitled to claim 
 
 collision, and foundering of ships which, 
 had they heen stronger or less crowded or 
 better moored, might have withstood its 
 fni-y ? Again, in the case of a ship which 
 has foundered in a storm at its moorings, 
 is the expense of raising and restoring it to 
 a proper condition to transport the cargo, 
 to be like '• the keeping of it in a proper 
 condition to transport the cargo," an ordi- 
 iiari/ disbursement only, or is the final 
 catistrophe of the ship's smking, though 
 not in any sense realized by the mind and 
 agency of man, to convert the whole outlay 
 necessitated by the same storm from ordi- 
 'iiari/ and particular into exfraordhiart/ and 
 general a^-erage expenditure ? 
 
 The difBculty of giving a satisfactory 
 answer to these c^uestions renders it im- 
 possible to accept this word cxfraordiuarii 
 as a test of general a^•erage expenditm-e. 
 It is used in truth in the French ordinance 
 as part of the description of average ex- 
 penses generally, of particular average ex- 
 penses, as well as of general average 
 exjienses. Valin, commenting upon the 
 1st article of the book, des Araries : — 
 
 " Toide depense exivAord.\r\-A.ive qui sef era 
 pour le navires ef marchandises conjoiiite- 
 onent ou separement ; tout dommage qui 
 lev.r arrivera depuis Jenr charge et depart 
 ju-iqu'a lei'.r retour et decharge seront re- 
 2)ufes avaries," says, and his commentary 
 is equally applicable to the second article, 
 the expenses are here called e.vtraordinarg 
 in opposition to expenses which may na- 
 turally, nntureUement, though they do not 
 ordinarily, occur, in the course of a voyage." 
 " Thus," he says, " the expenses incun-ed by 
 reason of the unusual i^rolongation of a 
 voyage, or by the master taking the ship 
 unnecessarily into a port in which dues are 
 payable, though not ordlnari/, are yet not, 
 in the sense of this article, extraordinary ; 
 otherwise, if the master seek the port be- 
 cause he cannot safely keep the sea, or the 
 ship be so damaged by the sea, that he is 
 obliged to go into port for repairs, though," 
 he adds, "in this last case, such expenses 
 are chargeable to the ship alone." 
 
 Granted, therefore, as it must be, that 
 none of those " ordinary disbursements of 
 the voyage, which are necessary to keep the 
 ship in a state to transport the cargo to 
 its destination," can found a claim for 
 general average contribution, it by no 
 means follows, that the circumstance of 
 expenses not being of that character, is any 
 recommendation of them for admission into 
 the class, of general rather than of pai'ti- 
 cular, average. 
 
 The words of the second proposition 
 " incurred for the joint benefit of sliip and 
 cargo," are open also to observation. They 
 ai'e a translation of the words "pour le 
 lien . . commum des marchandises et 
 du navire," but not, imce Enierigon, of the 
 words "pour le hien et salut commun des 
 marchandises ef du navire." The word 
 "salut," and the woi-ds " et le dommage 
 souffert," inoculate the whole passage, giv- 
 ing a temper to it which, on their elimina- 
 tion, is entii'elj' lost. Expenses not resolved 
 upon in time of danger before a ship enters 
 a port of refuge cannot be there incurred 
 for the common safety; for, as Benecke 
 observes, ante, note {d), p. 508, " the mere 
 fact of the ship and cargo being in a port of 
 refuge insures their safety." Mr. Phillips, 
 too, vol. 2, 2nd edit., p. 92, commenting 
 upon Lord Ellexboeough's judgment in 
 Flummer v. Wildman, and on a case 
 decided in Massachusets in conformity with 
 it, says, that in admitting repairs necessary 
 to the prosecution of the voyage to be 
 general average, the fundamental jjrinciple 
 of general average — the taking measures for 
 the safety of the property and the i)revent- 
 ing of a loss — had not been kept in view. 
 The fact, therefore, that expenses have been 
 incuiTcd for the joint benefit of ship and 
 cargo, is not enough to entitle them to 
 admission into the category of general 
 average. 
 
 By the Code de Commerce, title 11, des 
 Avaries, the first article above set forth, 
 of the title des Avaries in the French 
 Ordinance was re-enacted ; and in the 
 hope of composing the differences which 
 had occurred in the construction of the 
 second article, ante, p. 513, an enumeration 
 of the more ordinary sacrifices and expenses 
 which give a claim to general and particu- 
 lar average was set forth, the former article 
 being followed Viy the words : 
 
 JEt en general, les dommages soufferts 
 volontaireraent et les depenses faites d'apres 
 deliberations motivees pour le hien et saint 
 commun du navire et des marchandises de- 
 puis leur chargement et depart, jusqu'd 
 leur retour et dechargement, Art. 400 ; and 
 the latter, by the words : 
 
 Tit en general, les depenses faites et le 
 dommage souffert pour le navire seul on 
 pour les merchanclises settles depuis leur 
 chargement et depart jusqu'd leur retmtr et 
 dechargement. Art. 403. 
 
 But expenses, to be the subject of general 
 average contribution must, according to 
 Mr, Arnould's first proposition, be volun- 
 tary. The steering into a port of refuge,
 
 3. ship's expenses in poet op refuge, 615 
 
 as general average^ under an average agreement between himself and Chap. 1, 
 
 and the payment which it involves of port 
 (lues and other charges are, in a sense, 
 vohmtary acts j but when a particular 
 average, already sustained, has rendered the 
 incurring of such expenses a matter not of 
 question, deliberation, and decision affirma- 
 tive or negative, as the reasons on either 
 side in time of danger may seem to prepon- 
 derate, but of manifest and overruling- 
 necessity, ai'e they voluntary, in the sense 
 that a jettison of goods or the cutting away 
 of ship's apparel, with the deliberate pur- 
 pose of pre\'enting a loss of another and 
 more ■'Serious and extensive kind, not yet 
 realized nor certain to be realized, though 
 apparently imminent, is voluntary ? One 
 would hardly say so ; and yet it seems clear 
 from the first few lines of the inference 
 drawn by Mr. Arnould from his second pro- 
 position that, in his opinion, expenditure, 
 to be the subject of general average conti-i- 
 bution need not be voluntary in any sense 
 incompatible with its being also imperative 
 on the master on account of particular 
 average already sustained. For this posi- 
 tion he refers to a very wary notice of the 
 point by Stevens, pp. 22, 23, and to a pas- 
 sage in Benecke, p. 193, who says, " that if 
 an intermediate port must be entered 
 because the vessel, in consequence of a par- 
 ticular damage sustained, is unfit to pi'o- 
 secute her voyage, as when masts, sails, or 
 other requisite apparel are lost in a storm, 
 or the vessel has sprung a dangerous leak, 
 all the expenses of entering the port are a 
 subject of general average, being the con- 
 sequence of a measure voluntarily taken fijr 
 the preservation of the whole." See also 
 Baily on Average, pp. 28, 119. In England 
 this doctrine leans upon Mr. Arnould's 
 acceptance of it. The opinions of men of 
 business not caring to distinguish accurately 
 between the law of one country and the 
 law of another, the judgment of Lord 
 Ellenboeott&h, in Plummer v. Wildman, 
 the decisions in conformity with that judg- 
 ment of the courts of the United States, the 
 practice of the French Amirmites under the 
 empire of the Ordinance, and of some of 
 the French tribunals in our time (see 
 Hocjron Code de Commerce, art. 403, 
 Lemoiniier, Polices d' Assurance Maritime, 
 vol. 2, 113), and the text of the primeval 
 Rhodian Code, Pardessns Collection de lois 
 Ma7'itimes, cap. 7, tit. x, and note, may be 
 vouched in its favour; but it is reconcileable 
 with the principle of that code, as modified 
 by the equity of the Roman Lawgiver. 
 Against it, the conclusions of Boulay Paty, 
 Coiirs de Droit Commercial Maritime, 
 vol. 4, p. 458 ; Pardessns, Coitrs de Droit 
 
 2 I. 
 
 Commercial, Nos. 739, 740 ; Locre Esprit 
 dn Code de Commerce, Liv. 2, Tit. Des 
 A varies, art. 400; Lemonnier, Polices 
 d' Assurance Maritime, vol. 2, p. 108, 
 Bedarride, Commentaire du Code de Com- 
 merce {Maritime), No. 1676, and Duberuad, 
 the learned translator and anuotator of 
 Benecke, vol. 1, p. 607, are clear and unhe- 
 sitating. All these writers hold that ex- 
 jjenses, to be the subject of general average, 
 must be the result of acts voluntarily done, 
 or resolutions voluntarily taken for the com- 
 mon safety, in time of danger, and incurred 
 to repair damage, or to meet liability, of 
 which the mind and agency of man haA-e 
 been the realizing cause. Casaregis, con- 
 sulted on the question, whether the extra- 
 ordinary/ expenses of a ship, which, having 
 contracted a suspicion of infection by 
 anchoring in the harbour of Marseilles dur- 
 ing the prevalence of the plague there, 
 had, on that account, been denied admit- 
 ance to the ports of Spain, and which, after 
 wandering some time about the Mediter- 
 ranean, finally, in pursuance of a resolu- 
 tion to submit to the cost and delay of a 
 quarantine, went into the port of Toulon, 
 and was there, at a great sacrifice of time 
 and money, detained, — had been rightly de- 
 cided not to he the subject of general 
 average contribution; among other answers, 
 all of them pertinent to this question, gives 
 the following one : — " Minusqiie altera valet 
 ohjectio qiife inititur cuidani asserto consiUo 
 vulgo germinamento in navi habilo, cum 
 ministeriis et vectorihus, ex quo jiratendit 
 ijjse navarchus, fuisse jje>' omnes delibe- 
 ratum, oras IIis2)anicas deserendas et rena- 
 vigandam fore ut alibi invenire posset por- 
 turn seu loctMu, in quo ad jnirgationem 
 vulgo quarantina reciperettir et ^je;* conse- 
 quens quod oh talem deliberationem com- 
 muniter in navi captam, evagatio hue illuc 
 p)er mare, et demum diuturna p)srmanentia 
 in piortu Telonensi non mere fatalitati, sed 
 voluntati et electioni qiioqiie navis magistri, 
 trihuenda sit. Siiic enim objectioni dupli- 
 citer resp>ondetur ; prima consilium hujns- 
 modi operari turn demum duniaxat, cum 
 nullum adhuc navi damnum evenerit, quia 
 semper deliberatio aliquid dammim aut 
 noxium- navi inferendi, eo tendere debet, ut 
 navis et merces ah imminente vel majore 
 damno aut periculo liberaretur. Verum 
 cum consilium capitur postqucim casus for- 
 tuitus aut damnum evenit, ut in specie nos- 
 tra factum est, ^wstquam scilicet, jam sus- 
 p)icione 'pestis notata erat navis et repulsa 
 ah oris Hispianicis, adebque desperata jam 
 omni ad partus admissione, errare coacia, 
 e in mari degere aut ad Provincice infectos
 
 516 OF GEXEEAL AVERAGE. 
 
 Part VI. tlie consignees^ remnneration for such scmces, nor to be paid a com- 
 mission on tlie sale of the cargo or on liis disbursements {a) . 
 
 4, Of Goods sold for the Necessities of Ship and Cargo. 
 
 "We have seen, in a former part of this work, that a master may, 
 under certain circumstances, borrow money on the security of his 
 ship, or of its cargo ; and that, if his vessel be disabled by the perils 
 of the sea from carrying her cargo to its destination, he may, if he 
 thinks proper, hire another vessel for that purpose. But supposing 
 him to be unable to raise money on bottomry, or by hypothecation of 
 the cargo, and that no other vessel can be obtained, he is at liberty 
 to sell part of the goods entrusted to him, to enable him, by repairing 
 his ship, to carry the remainder to their destination. Goods thus 
 sacrificed for the benefit of the owners of the rest of the cargo seem 
 to have been considered by Lord Stowell, in the case of the Gratitu- 
 dine, and have been considered in other cases, to be the proper subject 
 of a general average [b] . '' The sale,^' said Mr. Justice Story, ^' of 
 part of the cargo by the master for the necessities of the ship, 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 a sacrifice at sea or on shore (c). This 
 opinion is consistent with the doctrine which, on the authority 
 of the judgment of Lord Ellexborough, in Phimmer v, IVildmun {d), 
 dispenses with the ingredients of imminent danger and voluntary 
 sacrifice for its aversion, in a claim for general average contribution, 
 to an outlay for the benefit of all concerned. It has also some 
 support from what fell from Lord Ellexborough in the following 
 
 pesteporius appelUreihiqueconsistere ; non "Expenses voluntarily and successfully 
 
 est consilium illud uUatenus spectanduni, incurred, or tlie necessary consefjuences of 
 
 imo irndendum et iiiepttim, quia coiisiUian resolutions voluntarily and successfully 
 
 caperede eo quod post casum fortv.ititmjieri taken, by a pereon in cliarseof a sea adveu- 
 
 dehet ex necessitate, iion est agere ■per con- ture, for the safety of life, slii]), and cargo, 
 
 silium et eleciionem, sed consilium in neces- under the pressure of a danger of total loss 
 
 sitate fingere et simulare, quemadmodum or destruction imminent and common to 
 
 sapienter adrertit Targa, qua propter post them, give, the ship being saved, a claim to 
 
 contigentiam alicujus sinistri non consilium general average contribution." But see 
 
 sed vulgare intrare debet dicterium, salvat Kemp v. Sallidai/, post. — Xote by Mr. 
 
 qui salvat — ' maferna lingua ' clii salva Justice Shee. 
 
 salva, chi perde perde." D(«c. 121, No. 17. (o) Schuster v. Fletcher, 47 L. .1. Q. B. 
 
 \j\>on the whole, it is impossible, consis- 530; L. R. 3 Q. B. D. 418. 
 
 tently with the opinion of Lord Texteedex, (i) 3 Rob. Ad. Rep. 255. The Hoffnung, 
 
 and with the doctrine of all the wn-iters on 6 Rob. Ad. Rep. 383. La Constancia, 
 
 Maritime Law, whose opinions have not 2 W. Rob. Ad. Rep. 487- See also Benecke, 
 
 been warped by the exceptional legislation 273 ; Stevens, p. 15 ; and Arnould on Ins., 
 
 or practice of the countries in which they vol. 2, p. 033, 2ud ed. 
 
 have written, to recognise a rule respecting (c) 3 Mason's Rep. (American) 255 ; 
 
 ship's expenses more comprehensive than Kent's Com. vol. 3, p. 342 (ed. 1844). 
 
 the following one: — (rf) Ante, p. 500,
 
 5. -WHEN SHIP DETAINED BY SOVEREIGN TOWEK. 517 
 
 case : A ship having met with tempestuous weather on her voyage Chap. 1. 
 from Hull to St. Petersburgh^ was obliged to put into Copenhagen to 
 unload and repair ; the expenses o£ which repair^ as well as the Sound 
 dues, Averc paid by the owner^s agent at Copenhagen. It being 
 impossible to negotiate bills on England, for the purpose of repaying 
 to the agent the sums he had disbursed for the ship^s use, the agent 
 caused the captain to be arrested, by process from the Maritime 
 Court of Justice at Copenhagen. In this situation, the captain, to 
 procure his liberation and to prosecute his voyage, sold a portion of the 
 cargo, the proprietor of which brought an action against another 
 shipper for contribution. " Had the ship," says Lord Ellenborough, 
 ''been seized for non-payment of the Sound dues, I should have 
 thought that the sale of a part of the cargo to pay them, in the 
 absence of all other means to raise money for that purpose, might 
 have been the foundation of a claim for general average. But these 
 duties had been paid by the ship-'s agent, and the money so paid 
 merely constituted a private debt due to him. I do not think that 
 any part of the plaintiff^s goods was sacrificed for the safety of the 
 ship and the residue of the cargo, in such a manner as to give them a 
 right to a contribution from the other shippers of goods on board. 
 Their proper remedy is against the owner of the ship" (e). 
 
 The last sentence of this judgment must, however, Idc considered 
 as the connect expression of the law of England on this point. 
 If, under circumstances of distress and danger, threatening destruc- 
 tion to ship and cargo, assistance could only be obtained by a sale 
 or transfer of part of the cargo to those in a condition to give assist- 
 ance, such a transaction, if at a sacrifice, might have upon it the 
 character of a general average, but the sale or hypothecation of cargo 
 by the master for the purpose of prosecuting the voyage, he hav- 
 ing no other means of raising money, is a sale by him, as agent of 
 his owners in charge for them of the cargo, for their benefit, they 
 being accountable for the proceeds of the sale to the owner of the 
 cargo sold, as for money lent to them, to enable them to perform 
 their contract (/). 
 
 5. Of the Exjjense of Wages and Maintenance of Creiv during the 
 Detention of a Ship by Order of a Sovereign Power. 
 
 [With respect also to the wages and maintenance of the crew 
 during the detention of a ship by the orders of a sovereign power^ 
 contradictory opinions are to be found in the works of writers on this 
 subject {g). Some authors have taken a distinction between the case 
 of an embargo in the lading port, and the arrest and detention of a] 
 
 (e) Dobson v. Wilson, 3 Campb. 480. v. Scaramanga, 41 L. J. C. P. 170; L. R. 
 
 (/) Powell V. GiuJgeon, 5 M. & S. 431. 7 C. P. 481. 
 
 Mcliardson v. Nourse, 3 B. & Aid. 237. {y) [Emerigon, torn. 1, p. 631. Beawes, 
 
 Benson v. Duncan, 1 Ex. 555, 3 Ex. 644. 165.] 
 Eallett V. Wigram, 9 C. B. 580; Harris
 
 518 OF GENEEAL AVERAGE. 
 
 Part VI. [sliip during the course of the voyage. The French ordinance pro- 
 vides for the latter case, by declaring, that if the ship be hired by 
 the month, the charges shall be reputed general average ; but if hired 
 for the voyage, the owners alone shall bear them [a) . The reason of 
 this regulation is not easily discernible {b), and it is in express con- 
 tradiction to the spirit of another article of the same ordinance on 
 the subject of freight (c). In the case of Da Costa v. Newnham {(I), 
 ]Mr. Justice 13ullek_, speaking of this expense of Avages and provisions 
 durinsf the detention of a ship by embargo, says, " The court has said 
 that these charges shall fall npon the owners only, and the freight 
 must bear them/' And this case docs not seem to fall within the 
 principle of the llhodian law, because here the delay does not proceed 
 from the act of the master or persons belonging to the ship, nor is it 
 for the general benefit.] 
 
 6. Of the Expense of Wages and Maintenance of the Crew lohilc 
 the Ship is waiting for Convoy. 
 
 [For the additional expense of the Avages and maintenance of the 
 crew, incurred while a ship has been waiting for convoy, general 
 contribution has sometimes been claimed : and three decisions of the 
 diiferent courts in Holland on this subject are related by Bynker- 
 slioek {e), which seem worthy of notice in this place. In the first 
 case, the master of a general ship, Avhich was armed, and had letters 
 of marque, and Avas bound to several Italian ports, during a Avar 
 betAvecn the Dutch and French, gave public notice of his intention 
 to receive goods, and to sail for those ports without the company of 
 other ships. Having received a cargo, he set sail under convoy of a 
 ship of Avar destined for Portsmouth, entered with her the harbour of 
 that place, and there Avaited a Avhole year for another convoy, under 
 Avhicli he sailed to Cadiz; and there Avaited a second year for a 
 third convoy, under Avhich he sailed to Italy, and delivered his cargo 
 there. Under these circumstances, the master sued the merchant for 
 general average, and obtained a decree in his favour, Avhich Avas 
 confirmed by one Court of Appeal, reversed by a second, and at last 
 finally afiirmcd by the senate, of which the learned author Avas then a 
 member, against his opinion, and against the general principles of 
 law on this subject, and against the particular engagement made by 
 the master on this occasion. This judgment appears to have been 
 disapproAcd of in Holland; for, in another case, which happened 
 soon afterwards, where five Dutch vessels coming from Surinam, and 
 learning on their A'oyage that a Avar had broken out betAveeu the] 
 
 
 (a) [Liv. 3, tit. 7, Des Avarics, art. 7. (c) [Liv. 3, tit. 3, Du Fret, art. 16.] 
 
 Code de Com. art. 400^ nuui. 6, and 403, (d) [2 Term Kep. iu K. B. p. 407-] 
 
 "»m. 4.] (e) [Byukershoek, Qua-stioues Juris Pri- 
 
 {h) [But see Pothier, Charte-partic, num. vati, lib. 4, c. 25.] 
 85 ; Emerigou, torn. 1, p. 539.]
 
 7. MAETNEES WOUNDED IN DEFENCE OF SHIP. 519 
 
 [Dutch and French, put into Plymouth, and there waited for convoy — Chai). 1. 
 Avhich case also Avent through all the same tribunals — the senate 
 decreed against the claim of contribution. A third case happened 
 soon afterwards, in which the same four courts successively decreed 
 in favour of the claim (/). But of this the circumstances were very 
 different from the two former, and such as seem to warrant the judg- 
 ments pronounced in it. It was the case of a ship freighted from 
 Amsterdam to Cadiz, Avith a stipulation to sail with convoy either to 
 that place or as far as Lisbon. The ship accordingly sailed under 
 convoy of a man-of-war, in company with several other vessels, and 
 Avhen she came near Lisbon, fell in with a fleet of privateers, by 
 which some of the other vessels were captured, and the ship in ques- 
 tion put into I/isbon, in obedience to a signal from the man-of-war, 
 and there waited six months before she could safely proceed to Cadiz. 
 In this case it is to be observed, that the master put into port to avoid 
 an extraordinary and impending peril, and not merely as a matter of 
 general caution to avoid the ordinary dangers always accompanying a 
 state of warfare. And the expense thus incurred appears perfectly 
 analogous to the cases of jettison, and to fall within the principle of 
 the Rhodian law ; for in this case, as the learned author observes, it is 
 clear that there was a present and impending peril, and it is clear also 
 that the voyage Avas delayed, not by any accident, but by design, 
 in order to avoid the peril.] 
 
 7. Of the Expense of Healing Mariners tvoumled in Defence 
 of the Ship. 
 
 [The ordinance of the Hansc Towns also mentions as an object 
 of general average the expense of healing mariners wounded in the 
 defence of the ship against the attack of pirates {(/) : I have already 
 mentioned the provisions made by the legislature of this country for 
 persons of this description (h). On the expense of repairing the 
 injury done to a ship during a combat, foreign writers differ in 
 opinion [i). In '^The Guidon,^' an injury done to the cargo by 
 the shot of cannon is said to be a charge upon the merchant only (k). 
 In England, it has been decided that neither the damage to a ship, 
 nor the ammunition expended, nor the expense of healing sailors 
 Avounded in an action with an enemy, is an item of general average. 
 The latter item, however, is made so by the Code de Commerce (l) ] . 
 
 (/) [For the sake of those who complain (It) [Part II, chap. 6, sect. 1, ante, 
 
 of deky in the administration of justice in p. 141.] 
 
 this country, it may be proper to mention, (i) [2 VaHn, 168. Pothier, Traite dcs 
 
 that in the last of these three foreign cases, Avaries, sect. 2, numbs. 144 & 154. Eraeri- 
 
 a period of nearly seven years elapsed gon, torn. 1, p. 628.] 
 
 between the first and the last sentence ; in (^:) [Chap. 5, art. 4.] 
 
 the second, a period of nearly ten years; (l) \_Taylor v. Curtis, 2 Marsh. 309j 
 
 and in the first, of almost sixteen years.] and 6 Taunt. 608. Code de Com. art. 400, 
 
 iff) [Art. 35.] num. 6.]
 
 520 
 
 OP GENEKAL AVERAGEi 
 
 Part VI. 
 
 8. Of Loss by Collision. 
 
 [By the laAV of most of tlic continental nations of Enrope^ the 
 injury done by one shij) to another, or to its cargo, withont fanlt in 
 the persons l)eloii<fing to either ship, is to be eqnally borne 1)y tlic 
 owners of the two vessels (a), and this doctrine is advanced by many 
 foreign writers ; it therefore becomes necessary to observe here that 
 by the law of England, in the case of damage happening in this 
 manner either to ship or cargo, by mere misfortune, and Avithout 
 fanlt in any one, the proprietors of the ship and cargo injured must 
 bear their own loss [h). I have already mentioned that such a mis- 
 fortune is considered us a peril of the sea. And in this respect the 
 law of England agrees with the Civil Law,] 
 
 9. Of the Jettison of Goods stoived on the Deck of the Ship. 
 
 [The French ordinance, in express terms, excludes from the Ijenefit 
 of general average goods stowed upon the deck of the ship (c), and 
 the same rule prevails in practice in this country {d) . Goods so] 
 
 (a) [Orel, of Oleron, art. 14 j of Wisbuy, 
 arts. 26, 50, 67, 70. French Ordin. liv. 3, 
 tit. 7. Des Aviirics, art. 11, and Valiii 
 thereon. Bynkcrshoek, Qua^st. Jiir. Priv. 
 lib. -1, ch. 18—21. But tlie law of France 
 appears to have been altered in this respect 
 by the Code de Commerce, art. 407.] 
 
 (6) [See the case of Buller v. Fisher, ante, 
 330.] 
 
 (f) [Liv. 3, tit. 8, Du Jet. art 13.] 
 
 {(I) [So proved in the canses of Metier v. 
 I'uHcler Deyl, Gniklhall Sitt. before Lord 
 Ellexboeough, C. J., Dec. 1803, and of 
 Backhouse v. Riplei/, before Ciia5[bee, J., 
 a short time before.] 
 
 (1). In the sixth edition, the words in 
 2^raetice were omitted from this [)assage, 
 under an impression that the anthor might 
 be supposed, by the use of them, to have 
 implied a doubt respecting the rule, which 
 it did not seem probable that he could have 
 intended. The meaning of Lord Tex- 
 TEEDEN was thought to be, that although 
 there had been no decision upon tlie sub- 
 ject in England, the rule of exclusion had 
 been observed, and that, except in cases 
 where usage had sanctioned the practice, 
 the master ought not to stow goods on deck 
 without the consent of the owner of them. 
 In this impression, the editor was confinncd 
 by Mr. Justice Stoey, who, in a note to this 
 passage, in the American edition, says, " Our 
 Liw is the same. A jettison of goods stowed 
 on deck cannot be brought into general 
 average ; but it is otherwise as to the ship's 
 
 boat J " — by Kent, who tells us (Comm. & 
 Mar. Law, Edin. edit., p. 231), "Goods 
 shipped on deck contribute, if saved, but 
 are not entitled, if lost, to the benefit of 
 general verage ; " — and by Bell, in whose 
 Connuentaries on the Law of Scotland 
 (vol. 1, p. 586) we read, " Goods stowed on 
 deck, and thrown overboard, are not to be 
 relieved by contribution. A claim for in- 
 demnity may lie against the master and 
 owners ; or the merchant if he knew that 
 his goods were so stowed, may l)e held to 
 have run the risk himself, but the loss is 
 not a proper average." The words in ques- 
 tion are now restored, in respectful submis- 
 sion to the opinion expressed by the Court 
 of Queen's Bench, in the case of Mihvard v. 
 Hibhert (3 Q. B. Rep. 120; 2 Gale & Dav. 
 142, and post, p. 526), to which the atten- 
 tion of the reader is requested. 
 
 It is remarkable that, in the fii'st edition 
 of this work (1802), no notice was taken of 
 the exclusion from general average, by the 
 laws of all maritime states, of goods stowed 
 on deck. In 1803, a witness in the cause 
 of Meyer v. Vander Deyl, described by the 
 author (post, p. 533, in tiotis) as " very con- 
 versant with the adjustment of averages," 
 stated that the rule of the French ordin- 
 ance prevailed in practice in this country ; 
 and in tlie second edition of this work, pub- 
 lished in 1804, the passage as it now stands 
 appearetl. 
 
 That this rule had its origin in positive 
 regulation, seems to be matter of doubt.
 
 9. JETTISON OF GOODS STOWED ON DECK. 
 
 521 
 
 [stowed may in many cases obstruct the management of the vessel, 
 andj except in cases where usage, may have sanctioned the practice,] 
 
 Chap. 1. 
 
 The Coiisolato del Mare, in which the 
 lirst iiuthcntic record of it is found, pur- 
 ports, indeed, to have been iqjproved of and 
 coiitirmed between the years 1075 and 1270, 
 at Home, Jerusalem, Acre, Jlarsielles, Ma- 
 jorca, Pisa, Genoa, Venice, Paris, Constau- 
 tinople, Rhodes, Messina, Cyprus, and else- 
 wliere, " as a collection of the good rules 
 and ordinances ordained by the ancients in 
 maritime and mercantile matters j" but 
 Grotius (De Jure, B. ct P., book 3, c. 1. s. 5, 
 note 4), and Pardessus (in liis preface to the 
 Consolato, in the Collection de Loix Mari- 
 times) are agreed that, notwithstanding 
 tliis parade of universal approval, it never 
 received, as law, the sanction of public 
 authority. However that may be, it con- 
 tains the earliest evidence of the sense in 
 which the la^v of jettison was understood in 
 the usage and practice of merchants, and it 
 is there laid down that^ 
 
 " If the master of a ship, who has let 
 his ship to merchants at a gross sum, or by 
 the quintal, shall, \vithout their will and 
 knowledge (sabtida e vohintat), place goods 
 iipon the deck, and such goods be lost or 
 spoiled, even though they were entered in 
 the ship's book, the said merchant shall not 
 be bound to contribute for their loss, but 
 the master himself shall answer for it. If 
 lie be not of ability to pay, the ship shall be 
 sold, to make amends for the lost goods, 
 and this in preference to all other claims 
 against the ship, except the wages of the 
 seamen. Any other property the master 
 has shall also be sold, to satisfy the owner 
 of such goods, but the owners of the ship 
 shall not be liable beyond the value of their 
 shares. 
 
 " But, if by an entry in the ship's register, 
 or verbally, before indifferent witnesses, the 
 merchant, to whom the goods belong, has 
 agreed that the master may put his goods 
 where he pleases, then, if they be lost or 
 spoiled, the owner of them must be the 
 sufferer. In that case neither the master 
 nor the other shippers shall be liable to 
 make any compensation, yet the owner of 
 the goods shall pay the freight agreed 
 upon, and all damage sustained on account 
 of his goods. This rule was made because 
 the master ought to carry nothing on the 
 deck except his crew, and the funiiture and 
 apparel necessary for the service of the 
 ship." — Consolato, par Pardessus, cap. 186; 
 Consolato, CoUa Spiegazouie di Casaregis, 
 ibid. 
 
 In the simplicity of early maritime com- 
 merce, when merchants accompanied their 
 ventures to sea, this just and sensible rule 
 could be productive of no inconvenience. 
 The cargo was shipped under the eyes of 
 those who were to share on common terms 
 the perils of the enterprise (1); objections 
 to irregular modes of stowage were made, 
 insisted upon, or waived ; and if danger 
 afterwards arose, no sacrifice took place 
 until all had been consulted. When that 
 practice ceased, the consent of absent 
 shippers to add to their own risk, by a 
 guarantee of the goods of others, so stowed 
 as to be exposed to peculiar peril, and to 
 invite their jettison by encumbering the 
 ship, could not under ordinary circum- 
 stances, be presumed, and the rule of the 
 Consolato became more strict as the occa- 
 sions for its relaxation were less frequent. 
 
 In times comparatively modern, the ex- 
 clusion of deck-cargo from average has 
 been enforced by the jDOsitive enactments 
 of many maritime states. The ordinance 
 of Genoa, a.d. 1441; Antwerp, a.d. 1563; 
 Lubeck, a.d. 1586; France, a.d. 1681; 
 Rotterdam, a.d. 1721; Konigsberg, a.d. 
 1730; Hamburgh, A.D. 1731 ;"Bilboa, A.D. 
 1738; Copenhagen, a.d. 1746; Stockholm, 
 A.D. 1750 (by which last the subjects of 
 general average are declared to be " goods 
 stowed under deck or in the cabin") — all 
 recognise the principle, that goods stowed 
 on deck shall contribute to general average 
 if saved, but shall not, if thrown overboard, 
 be entitled to contrilnition. 
 
 If a conjecture might be allowed on a 
 point involved in some obscurity, it is not 
 improbable that these enactments were 
 rendered necessary by the constructious of 
 the civilians, who, in exclusive possession of 
 the legal learning of Continental Europe, 
 were at all times anxious to mould the 
 usages of merchants into conformity with 
 the laws of Justinian. No trace of the rule 
 excluding deck-cargo from average was to 
 be found in the Roman Digest, or in the 
 fragments called the Basilica, of the code 
 promulgated (a.d. 886) by the Emperor 
 Leo. Indeed, its recognition, without large 
 exceptions, was scarcely compatible witli 
 the best established principles of that juris- 
 prudence. The exercifor navis of the ciNil 
 law was held to have guaranteed before* 
 hand the acts and contracts of the magister 
 navis. The consent of the master was the 
 consent of his employer the consent there- 
 
 (1) See the Consolato. See also the Basilica, c. 5 (Jlipi avveKTcphpag ottms yivtrca,) 
 and the Roles d'Oleron, cap. 8.
 
 522 
 
 OF GENEEAL AVEKAC4E. 
 
 Part VI. [the master ought not to stow them there mthout the consent of the 
 merchant.] 
 
 fore of the shijiow uer, and iii many cases, 
 of the nicrcliaiit-chartci'cr, to whom the 
 goods under deck belonged. Quiutiu 
 Weytsen, in whose work (De Avariis), 
 published at Amsterdam, no decree is cited 
 of a later date than 1551, lays down (art. 34) 
 in distinct terms the nde excluding deck- 
 cargo from average, and yet propounds 
 (art. 32) this question : " Si mercator 
 totam navem conduxit ed condUione, nc 
 luagister alias merces recipiat quam ipsius, 
 et mercator, pro tenore instrumenti nautici, 
 magisfro pleuiim onus dedif ; nihilomintis 
 taniem magister qiiasdam sarcinas ab aliis 
 iiiercatoribns receptas in for is collocacit, 
 casque postea tempestate ptroeeUdque ortii, 
 projecit in mare; quceritur, inquam, an 
 mercator qui totam navem condtcxit et 
 oneravit Jacturam sarcinarum prcestare 
 teneaturf Respondeo, dominum sarcinarum 
 actnrum in reliquas merces, in navem im- 
 missas, nt ex eis sibi damnum reparetv.r 
 qucB jiropter amissas sarcinas salcce sunt, et 
 tamen in communi periculo fuerunt." In 
 this he is followed by his commentator 
 ])e Vicq, and by Loccenius, whose treatise, 
 De Jure Maritimo, was published at Stock- 
 holm in 1681, aud who holds (lib. 2, s. 12) 
 that it is the duty of the master to retain 
 the cargo until the average is paid. The 
 obvious effect of such constructions was to 
 enable the master to hold out to shippers 
 of deck-cargo a guarantee against loss by 
 jettison, secm-ed upon the property of those 
 in fraud of whom it had been received. 
 His own ability was generally so slight as 
 to render all recourse against him nuga- 
 tory, and positive enactments were re- 
 quired, for the protection of merchants aud 
 ship-o\Amers. See post. 
 
 Of the early English writers on the 
 Marine Law, Malynes, in his Lex Merca- 
 toria (cap. 26); MoUoy, De Jure Maritimo 
 (book 2) ; Jacob, Lex Mercatoria (cap. 2), 
 exclude goods stowed above the "over-lope" 
 or the "berth-mark" from general average. 
 Magens, also citing the foreign ordinances, 
 Weskett, p. 165 ; Benecke, pp. 293, 303 ; 
 •Stevens, p, 103, in their treatise on Aver- 
 ages and Insurances ; and Caines, Lex 
 Mercatoria Americana, p. 232 ; all refer to 
 this i-ule, without suggesting a doubt of 
 its adoption into the merchant law of Eng- 
 land. 
 
 We have seen that, at the age of the 
 Consolato, the rule excluding deck-cargo 
 from average prevailed, and that no agree- 
 ment between the master and the shipper 
 of goods could protect them fi'om its opera- 
 tion without the consent of the other 
 shippers. Let us now inquire what excep- 
 
 tions to that rule have obtained in modern 
 times, and how far they have been adopted 
 in England. 
 
 By the Ordinance of Louis the Four- 
 teenth (liv, 3, tit. 8, art. 13), Des Avarics 
 it is enacted, that — 
 
 " There shall be no contribution for goods, 
 which, being stowed upon deck, arc thrown 
 overboard or damaged by jettison. The 
 owner of them shall have his remedy against 
 the master, but such goods shall be liable to 
 contribute if they be saved." 
 
 In the second book of the Ordinance, Du 
 Capitaine, another article resjiecting deck- 
 cargo is found : — 
 
 " Masters of ships are forbidden to load 
 any merchandise upon the deck of their 
 ships without the consent of the merchants, 
 imder pain of answering to the owners of 
 it for the loss which may ensue." — Liv. 2, 
 tit. 1, s. 12. 
 
 Valin (a.d. 1760), upon this article, says 
 that this rule is not observed in the coast- 
 ing trade, and cites a decree of the Court 
 of Admiralty at La Eochelle, by which the 
 jettison of a quantity of flour, stowed on 
 the deck of a boat, on her passage between 
 Kochefort aud Marans, was attendu la 
 notoriete de Fusage, held to found a claim 
 for contribution from the owners of the boat 
 and of the goods stowed under deck. In 
 his Commentary, also fi'om the article of the 
 Ordinance above cited from the book Des 
 Avaries, after stating the ground of the 
 exclusion of the deck-cargo to be, that it 
 could only be on deck because the vessel 
 was full without it, or because the master 
 had neglected to stow it in a proper place, 
 in both which cases he would be respon- 
 sible for the loss ; and because, being in 
 the way, and impeding the management of 
 the ship, the presumption is, that it would 
 be th^o^vn overboard befoi'e any real neces- 
 sity for jettison had arisen ; he adds : — 
 " This disposition does not apply to small 
 vessels going from port to port, where a 
 usage exists of stowing their lading as well 
 above as imder deck." 
 
 Pothier, in his chapter Des Avaries, 
 referring to this article of the Ordinance, 
 adopts the reasons given by Valin for the 
 rule, but takes no notice of the exception 
 ingrafted upon it. Emerigou (A.D. 1783), 
 after stating the rule which excludes deck- 
 cargo, and the exception to it propounded 
 by Valin, refers to the statutes promul- 
 gated in the thirteenth century by the 
 Lords of Marseilles: " Statuentes, quod 
 qucelibet navis possit poriare supra cooper- 
 iam, equos et alias bestias, et lanam et 
 boudrcns si navis veniret de partibus Bar' 
 
 I
 
 9. JETTISON OF GOODS STOWED ON DECK. 
 
 523 
 
 As to when it is imlaAvful to carry deck loads of timber, see 39 &40 Chap. 1. 
 Vict. ch. 80, s. 24; in Appendix. 
 
 harioB." And proceeds — "All this might 
 be good to exL-nse the master to the pro- 
 tprictor of such goods, but by no means to 
 Ibring into general average goods sto^ved 
 [upon deck, luithov.t the consent of the other 
 \shi]xpers." — Emerigou, torn. 1, p. 623. ' 
 
 Boulay Paty (Cours de droit Mar., vol. i, 
 p. 566) infers from this passage that Eme- 
 irigon inclined to an opinion adverse to the 
 I exception of Valin, and the silence of 
 ' Pothicr would seem to justify a surmise 
 that his mind was not free from doubt 
 upon the subject. The truth is, that the 
 decree of the Admiralty of La Rochelle 
 has not been implicitly received in France. 
 The grounds on which it proceeded are not 
 . very clearly stated in Valin's report ; and 
 Boulay Paty (ibid.) informs us, that not- 
 Avithstanding the express protection from 
 responsibility for deck-cai'go, since ex- 
 tended by the Code de Commerce (art. 229) 
 to masters in the coasting trade, it was 
 held by the Cour Royale de Kennes in 
 1822, that art. 421, excluding goods so 
 disposed from average, was a law without 
 exception. Boulay Paty and Eogron dis- 
 approve of that decision on the ground of 
 the special provision in the fonner article, 
 which ought, they contend, to be liberally 
 construed, and their view appears to have 
 been confirmed by a decree of the Cour 
 Royale de Bordeaux. Emerigon, however, 
 admits goods to general average when 
 stowed on deck, with the consent of the 
 other shippers, and the doctrine of Valin 
 may perhaps be found not to difler in point 
 of principle from that opinion. 
 
 In the United States, the rule excluding 
 deck-cargo from average, as laid down by 
 Kent and Stoey, appears to have been in- 
 flexibly maintaineil. In the case of Dodge v. 
 Bartol (5 Greenleaf's Rep. 286), an action 
 v^as brought by the owner of goods which 
 had been shipped on deck, by agreement 
 between him and the master, to recover 
 from the owner of the ship a contribution 
 for their loss by jettison. The cause was 
 tried before C. J. Mellin, who directed the 
 jury to consider (1), whether there was a 
 general usage iu the particular trade to 
 carry deck-loads, when occasion offered, 
 if not deejily laden, and no objection made; 
 and (2), whether there was such a general 
 usage among merchants and shippers, that 
 the owner of a deck-load cannot maintain 
 an action against owners and freighters for 
 their proportion of the loss occasioned by 
 its jettison for the preservation of the vessel 
 and cargo; such usage being so generally 
 established as to have the force of law; 
 both of which qutstions the jury answered 
 
 in the affirmative. The case being after- 
 wards brought before the Supreme Judicial 
 Court of Maine, the counsel for the defen- 
 dants rested his case on the bi-oad ground, 
 that the o^\Tlers of a vessel are not liable to 
 contribution for the jettison of goods stowed 
 on deck, and the passage from Yalin was 
 cited for the plaintiff in support of the 
 exception to that iiile, on the ground of 
 usage. Mr. Justice Westox, delivering 
 the judgment of the court, refused to admit 
 the exception as part of the maritime law 
 of America. He says, "The general law 
 that jettison from the deck presents no 
 case for contribution has been recognised 
 in New York and Massachusetts. By the 
 general maritime law, this is not a case for 
 contribution. If this be by usage an 
 excepted case, the burthen of proof is on 
 the plaintiff to show it. The defendants 
 are not bound, uor is it necessary for them 
 to prove a usage corresponding to the 
 law." 
 
 With the rule thus founded on ancient 
 usage, and confirmed by modern ordinances 
 and decisions, the practice of mercantile 
 men in England has been uniformly con- 
 sistent. Goods stowed on deck ^^-ere con- 
 sidered to be at the risk of the shipowner, 
 unless so stowed by agreement '\\ith the 
 owner of them, in which case he was held 
 to have taken the risk upon himself. Poli- 
 cies of insurance on ship or goods were, iu 
 the absence of special provisions, under- 
 stood not to cover deck-cargo, or average in 
 respect of it. Losses were settled, averages 
 adjusted, on the principle of its exclusion. 
 Even in trades, in which the custom of 
 carrying deck-load had become inveterate, 
 no instance, within the memory of the most 
 experienced, was known to have occuiTcd 
 of a claim for general average in respect of 
 it having been submitted to or enforced. 
 It was of this practice of English mer- 
 chants, undisturbed by judicial decision, 
 that Lord Tenteeden was understood to 
 speak, when adverting to the positive enact- 
 ment of one of the foreign ordinances; he 
 says, " the same rule prevails in practice iu 
 this country." Had he entertained an 
 opinion that it might be countervailed by a 
 prevalent practice in a particular trade to 
 carry goods on deck, he would have ex- 
 pressed that opinion iu unambiguous lan- 
 guage, and supported it by argument or 
 authority. 
 
 The judgment of the Court of Common 
 Pleas, in Gould v. Oliver (p. 486; 4 Bing. 
 N. C. 134), may appear to support the 
 doctrine that a custom in a particular 
 trade to carry deck-cargo will exempt it
 
 OF GENEEAL AVERAGE. 
 
 10. Bemarks. 
 
 [Hitherto Ave have considered the losses, which are to be com- 
 pensated by general contribution, as being the price of safety ; but 
 this is not to be understood of absolute and perfect safety, by arrival] 
 
 from the operation of this rule of exclusion. 
 But in that case, a custom in the Canada 
 trade, that the owners of ships had been 
 used to have, and of right ought to have, 
 for themselves and their servants, the liberty 
 and privilege of carrying a portion of timber 
 on the deck, was averred and admitted upon 
 the record, and the judgment proceeded on 
 that admission. The real point in dispute — 
 the existence of this usage — was eluded by 
 the issue in law, joined on the demurrer to 
 the plea. But when, after the trial of 
 the issues in fact, that case came again 
 (2 ]Man. & G. 208) under consideration, on 
 exceptions taken to the evidence which had 
 been received to rebut the evidence of the 
 alleged usage, the court expressed a clear 
 opinion that a usage, for shipowners to 
 make good the loss sustained by jettison 
 from the deck was strong evidence to show 
 that the practice of carrying goods on deck 
 llOwe^■er common, was not warranted by the 
 usage of the trade. Tbe authority of Valin 
 is, indeed, cited by C. J. Tixdal, in the 
 earlier judgment, for the rule of exclusion, 
 and for the exception to it, on the ground 
 of usage. But on refen-ing to the com- 
 mentary on the ordinance, it seems pro- 
 bable that the usage which Valin states 
 to have been comtirmed by the Admi- 
 ralty of La EochcUc, was a usage, not 
 simply to carry deck-cargo, but also to 
 adjust the loss of it on the principle of 
 general average. He tells us it was a usage 
 which had always been " tolerated ; " and 
 adverting to the case of an o^\^ler of under- 
 deck- cargo, who had refusetl to be bound 
 by it, speaks of the decree then recently 
 pronounced against him, as a legal sanction 
 given to an old existing custom. It is, 
 indeed, incredible that any usage short of 
 this could have been sustained against the 
 enactment of the French ordinance, whereas 
 a decision that shipi)ers and shipowners 
 nuist be considered, in the absence of ex- 
 press stipulations, to assent to average and 
 its adjustment with reference to the known 
 course and usage of the particular trade to 
 which their contract relates, would be 
 consistent with the principles of the 
 civil law, the French law, and our 
 own P Pothier, Des OUigations, part 1, 
 
 ch. 1, s. 1, art. 7. Simmons v. White, 2 
 B. & C. 805. 
 
 Upon the whole, it is with great diffidence 
 submitted, whether the true reading of this 
 passage be not, that a usage in a particular 
 trade to stow goods on deck, or the consent 
 of the o^vner of them, may relieve masters 
 of sloips from resi^onsibility for the loss of 
 goods so disposed ; but that in England, as 
 in other maritime states, they are excluded 
 from the benefit of general average. — 2I)\ 
 Justice Shee. (But see John son v. Chaj)man, 
 post, 526.) 
 
 (2.) The right of the t)wner of deck-cargo 
 to be relieved in case of its jettison by a 
 general contribution, had not until lately 
 been the subject of consideration in our 
 courts. In a few cases of insurance — • 
 Backhouse v. Mipley, Park on Insurance, 
 26 ; Ross v. Thwayte (ibid), and Da Costa 
 V. Edmunds, 4 Campb. 142, the propriety 
 of that mode of stowage had been noticed, 
 but in them the plaintiffs sought to recover 
 from underwriters the full value of goods 
 thrown overboard. The defence was founded 
 upon a usage exempting insurers from lia- 
 bility for the loss of such goods, or of goods 
 so disposed, and not upon any rule of the 
 law of general average. Underwriters on 
 goods might be liable on their contract to 
 make good a loss by jettison ex justd 
 causa, although a claim for general average 
 in respect of it could not be sustained, — 
 Butler V. Wildman, 3 B. & A. 398. Such 
 cases, therefore, do not appear to be of direct 
 authority on the question, whether or not 
 goods stowed on the deck of a ship are ex- 
 cluded from the benefit of general average. 
 
 In the case of Gould v. Oliver, 4 Bing. 
 X. C. 134; 5 Scott, 445, the owner of 
 certain timber, shipped at Quebec for Lon- 
 don, and of which jettison had been made 
 during the voyage, brought his action to 
 recover so much money as the defendant, 
 as owner of the ship and her freightj was 
 liable to contribute to the said loss in a 
 general average. The second count set out 
 a custom touching the loading of timber in 
 the trade between Quebec and London, by 
 which shipowners had the liberty and pri\'i- 
 lege of loading on deck a reasonable part 
 of the timber which they were employed to
 
 10. EEMAEKS. 
 
 525 
 
 [and delivery at the port of destination. If temporary safety be 
 obtained by the loss ; if the ship survive the storm^ or escape the 
 enemy, and be afterwards cast away by another tempest, and goods] 
 
 Chap. 1. 
 
 carry, and alleged that the timher in ques- 
 tion was a reasonable part of the timber 
 which the defendant was employed to cai-ry, 
 and was laden on the deck according to 
 such custom. The defendant pleaded, ad- 
 mitting the custom stated in the declara- 
 tion, that there was not any custom that 
 any contribution and general average should 
 be paid on the loss or damage of timber 
 Y>laced on deck and cast overboard. To 
 which plea the plaintiff demurred. 
 
 On this issue, the question was not 
 whether, generally, the owner of goods laden 
 on deck, which are thrown overboard for 
 the preservation of the ship and the rest of 
 the cargo, is entitled to contribution against 
 the owners of the ship and of the residue of 
 the cargo, but whether, in the special and 
 particular case, where the shipowner had 
 laden the goods on deck under a privilege 
 reserved to him by the general usage and 
 practice of the voyage, known to both the 
 contracting parties, the owner of the goods 
 might claim contribution from the ship- 
 owner ? " Upon the best consideration," 
 said Chief Justice Tindai, delivering the 
 judgment of the Court of Common Pleas, 
 " that we can give to this question, referring 
 at the same time to the foreign authorities, 
 and to the few decisions which have taken 
 place in our own courts, we think the plain- 
 tiff entitled in this case to contribution 
 against the shipowner. The general rule 
 laid down by the foreign authorities, and 
 adopted by our ova\ law, is, as is well 
 known, that all goods thrown overboard 
 for the preservation of the ship and cargo, 
 shall be entitled to contribution. Upon this 
 general ride, however, there is engrafted an 
 exception by the foreign \\Titers, that goods 
 laden on the deck and cast into the sea 
 shall not receive contribution, saving to the 
 owner of the goods his recourse against the 
 master or shipo^\'ner : " Consol. del Mare, 
 by Boucher, c. 183 ; Ordinance, book 3, 
 tit. 8, art. 13; Emerigon, c. 12, s. 42; Code 
 de Commerce, art. 421. Now, where the 
 loading on deck has taken place with the 
 consent of the merchant, it is obvious that 
 no remedy against the shipowner or master 
 for a ^\Tongful loading of the goods on deck 
 can exist. The foreign authorities are, 
 indeed, express on that point : Valin, tit. 
 Du Capitaine, art. 12 ; Consol. del Mare, 
 c. 183. And the general rule of the 
 English law, that no one can maintain an 
 action for a wrong whei'e he has consented 
 or contributed to the act which occasioned 
 his loss, leads to the same conclusion. Un- 
 
 less, therefore, the owner of the timber in 
 this case has a claim for contribution 
 against the owner of the ship, he is without 
 any remedy whatever against any one, but 
 must himself bear the whole of the loss, in 
 consecjuence of his timber having been 
 thrown overboard for the benefit of all ; an 
 inference directly at variance with the 
 general rule above laid down, and, indeed, 
 contrary to the authority of the foreign 
 writers. For Valiu lays it down, that the 
 rule of art. 13 does not apply in respect of 
 boats and other small vessels going from 
 port to port, " where the usage is to load 
 merchandise on the deck," the latter words 
 of which text- writer gives the reason for 
 throwing such a case out of the exception 
 into the general rule for contribution, at 
 least so far as the ship is concerned. 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 gene- 
 rally established seems to have been, that 
 for goods so laden the underm-iters are not 
 responsible. But in the case of Da Costa 
 V. Edmunds (4 Campb. 142), it was left to 
 the jury to say A\hether there was a usage 
 to carry on deck goods of the description 
 of those thrown overboard, and the jury 
 having found such usage, the underwriters 
 were held liable. The case now under con- 
 sideration does not, indeed, arise between 
 the same parties, but appears to fall within 
 the same principles of decision. 
 
 In order to a clear apprehension of the 
 grounds on which this judgment proceeds, 
 it will be necessary to attend particularly 
 to the precise point raised on the record, 
 for the decision of the com-t. The liability 
 of the shipowner to contribution was the 
 only question to be determined, and the 
 judgment, therefore, is limited to an affir- 
 mance of his liability. From another 
 report of the same case, upon motion, after 
 trial of the issues joined upon the pleas to 
 the first count {Gould v. Oliver, 2 Scott, 
 N. R. 241 ; 2 Mann. & CI. 208), it appears 
 that the -whole cargo was the property of 
 the plaintiff, and, therefore, that the fund 
 contributory to a general average loss would 
 consist of the value of his own goods, and 
 the ^'alue of the ship and her freight. The 
 rule, however, excluding goods stowed on 
 deck from the benefit of general average was 
 expressly recognised, and the case brought
 
 526 
 
 OF OEXEEAL AVEEAGE. 
 
 Part VI. [be saved from the wreck, the clear value of the goods so saved must 
 """ be contributory to the original loss, because vrithout that loss, even 
 this diminished value would have had no existence {a) . 
 
 The abandonment of goods on these occasions, although it be the 
 act of man, is not considered to be so far vohmtary as to divest the 
 property of the merchant, and give a title to any person who may find 
 and save them; but from such person the merchant may reclaim them 
 on payment of salvage (b) : and if he is able to do so, their clear 
 value is to be deducted from the contribntion, or paid to the con- 
 tributors. 
 
 It has been observed in a preceding part of this treatise (c), that 
 when an entire ship is taken to freight by a merchant, the master 
 must not take on board the goods of other persons without his 
 consent : from whence, I apprehend, it Avill follow that if goods so 
 wrongfully shipped be afterwards cast overboard to lighten the vessel, 
 the merchant-freighter onght not to contribute to the loss.] 
 
 withiu the exception of that rule, in favour 
 of goods so stowed, according to the usage 
 of a partieuUir trade. 
 
 In the case of JMilward v. Sihhert (3 
 Q. B. Rep. 120; 2 Gale & Dav. 112), since 
 decided in the Court of Queen's Bench, this 
 question has been further considered, and 
 it has been determined that the law of 
 England does not recognise an inflexible 
 rule, by which goods stowed on deck are 
 excluded from the benefit of general 
 average; but assumes goods so stowed to 
 be entitled, as well as others, to that 
 benefit, unless there be proof that in the 
 particular case such stowage was contrary 
 to usage, or in itself improper. 
 
 The question arose in an action on a 
 policy of assurance on a ship, by the owner, 
 against the underwriter, to recover the pro- 
 portional share of general average, which 
 the plaiutift' had been obliged to pay in 
 respect of the jettison of a number of pigs 
 in the course of a voyage from Waterford 
 to London. The defendant pleaded 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 that jettison. To 
 this the plaintiff replied, 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 according to 
 the usage of the shipping trade between 
 Waterford and London. On a special de- 
 murrer to this replication, on the ground 
 that it did not allege that the defendant 
 had notice of the custom, the court ex- 
 pressed a clear opinion that the plea was 
 bad, and that the mere fart that the pigs 
 
 were stowed on deck was no answer to the 
 action. 
 
 It seems, therefore, that the rule which 
 excludes goods stowed on deck from tlie 
 benefit of general average, although it pre- 
 vails in practice, has not been adopted as a 
 principle into the law of this country. 
 "The practice," said Lord Denmax, "ap- 
 pears to have been, 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 commercial men 
 respecting the usage of the trade, and the 
 general understanding of those engaged in 
 it, and in insuring, which may obviously 
 vary, and require from time to time fresh 
 evidence and different explanations." — 
 31)'. Justice S/iee. 
 
 See Miller v. Titherington, 30 L. J. Ex. 
 217; 31 L. J. Ex. 363. A deck cargo of tim- 
 ber was thro^nl overboard to save the whole 
 adventure; it was held in an action be- 
 t^veen the shipper of the cargo and the 
 shipowner that it became subject to the 
 rule of general average, as the charter- 
 party provided for a deck cargo, and as it 
 was not shown that a deck cargo was 
 illegal. Johnson v. Chapman, 35 L. J. C. P. 
 23 i 9 C. B. (x.s.) 563. 
 
 (fl) [Dig. 14, 2, 4, 1. Yinnius in Pcckium, 
 pp. 246, 250.] 
 
 {h) [Dig. 14, 2, 2, 8, and 14, 2, 8. In 
 TucA-er y.^Cappes, 2 Eoll. Rep. 498, Mr. 
 Justice DoEDEiDGE said, " the proprietor 
 of the goods may bring an action of trover 
 against the finder."] 
 
 (c) [Ante, ch. 1 of this part. See Ordin. 
 of Wisbuy, art. 46.]
 
 11. WHAT ABTICLES AEE TO CONTEIBUTE. 527 
 
 11. What Articles are to Conttnbiife. — '- 
 
 [In the second place, let us consider the articles that are to con- 
 tribute to make good these losses. And these are, all merchandise 
 conveyed in the ship for the purposes of traffic, whether belonging to 
 merchants, to passengers, to the owner, or to the master, of whatever 
 kind, and however small be their weight (d) in comparison to their 
 value (e) . For the contribution is made not on account of encum- 
 brance to the ship, but of safety obtained. Therefore, in this country, 
 bullion and jewels contribute according to their full value (/) . 
 
 For slaves, also, who are considered as a species of merchandise, 
 their proprietors must contribute according to their value {(/) ; 
 although this dreadful traffic has not extended so far as to authorize 
 the casting of these unhappy persons into the sea, and making their 
 loss an object of contribution (h), But as no estimation can be made 
 of the value of the life of a freeman, neither passengers nor crew are 
 to contribute for their personal safety (?) . Neither in this country 
 do the wearing apparel, jewels, or other things belonging to the 
 persons of passengers or crew, and taken on board for their private 
 use, and not for traffic, contribute on these occasions {k) . And 
 Emerigon informs us that the same practice prevails in France, 
 although the ordinance of that country has not exempted these 
 articles (/). Both the ship and the freight gained in the voyage are 
 now everywhere contributory, although formerly, in some countries, 
 contribution was made for the value of one only (m) . But the owners 
 do not contribute for the victuals or ammunition of the ship. In 
 France, and many other of the continental states, contribution is 
 made in some cases for the whole, in others for a moiety only, of the 
 value of the ship and of the gross freight. In this country, the 
 owners contribute according to the value of the ship at the end of 
 the voyage, and the clear amount of the freight or earnings of the 
 voyage, after deducting the wages of the crew and other expenses of 
 the voyage. And it was held that the freight should contribute in 
 respect of a loss occurring on an outward voyage, in a case where a 
 ship was chartered out and home, and the freight was payable accord- 
 ing to the quantity of the homeward cargo, and upon the ship's] 
 
 (d) [Dig. 14, 2, 2, 2. 1 Magens, pp. 62, (/) [Dig. 14, 2, 2, 2.] 
 
 65. Emerigon, torn. 1, p. 639.] £row)i v. {k) [1 Magens, pp. 62, 63. Eiit by the 
 
 Hlapylton, 4 Bing. 119. Civil Law the rule was otherwise, Dig. 14, 
 
 (e) [Lord Kaiji admits this rule, but 2, 2, 2 ; and a contrary rule is also laid 
 coiitrovcrts its propriety, and contends that down in the Guidon, eh. 5, art. 26, upon 
 the contribution should be according to which, however, Cleirac observes that the 
 weight, and not value.-Principlcs of Equity, ordinances of different states vary.] 
 
 p. 116. I cannot think his arguments (?) [Tom. 1, p. 645, &c.] 
 
 satisfactory.] (?«) [See the authorities cited by Emerigon, 
 
 (/) [1 Magens, pp. 62, 63.] torn. 1, p. 648, &c., and Ordin. of Wisbuy, 
 
 {(/) [Dig. 14, 2, 2, 2.] This, it must be art. 40. It is still so by the Code dc Com. 
 
 borne in mind, is taken from the 5th ed. of art. 401.] See Fi-aqes v. Worms, 19 C. B. 
 
 this work, published in 1827. Since then (n.s.) 159 ; Bynie v. Schiller, L. R. 6 Ex. 
 
 .slavery has been abolished. 20, 319 ; 40 L. J. Ex. 177. 
 (A) [Emerigon, torn. 1, pp. 610, 646.]
 
 528 OF GENERAL AVERAGE. 
 
 Part VI. [safe arrival. The question arose in an action brought by the ship- 
 
 owner on a policy of assurance on the ship for the outward voyage. 
 
 The insurers were allowed to deduct the amount of a general average 
 on the freight. The ship had arrived in safety in the Thames before 
 the trial of the action («). The mariners do not contribute for their 
 wages, except in the single instance of the ransom of the ship. 
 In this instance they are required to contribute in order to encourage 
 resistance ; in other instances they are exempted from contribution^ 
 lest the apprehension of personal loss should restrain them from the 
 execution of the measures necessary to general safety ; and the peril 
 and extraordinary hardships endured by them on these disastrous 
 occasions well entitle them to an exemption from further distress.] 
 
 In Kingston v. Wendt {b), Blackburn, J., said, whilst delivering 
 the judgment of the court "in Phillips on Insurance, cap. 15, sect. 1, 
 sub-sect. 1273, it is said, " General averages are usually eases of 
 sacrifice for the entire risk in ship, freight, and cargo, and hence 
 called general ; but a contribution may be by part of those interests, 
 where only a part is in peril, and benefited by the expenses and 
 sacrifices ; " and again, in cap. 16, sect. 4, sub-sect. 1470, "" where 
 expense is incurred on divers articles in common the adjustment is 
 made by an average on the articles according to their value." In 
 Moran v. Jones {c), this court held that the cargo, ship and 
 freight were, in that case, all saved by one continuous operation, but 
 they expressed a decided opinion, that if the expense had been 
 incurred after the cargo was safe, for the benefit of ship and freight 
 alone, they would, as between the two, have been general average to 
 which the ship and freight were to contribute rateably. This we 
 think confirms the opinion expressed in Phillips." 
 
 See Crookes v. Allan, L. R. 5 Q. B. D. 38 ; 49 L. J. Q. B> 201, 
 where it was held that a condition in a bill of lading that " the ship- 
 owner or railway company are not to be liable for any damage to any 
 goods which is capable of being covered by insurance, &c.," did not 
 relieve the shipowner from contribution to general average. 
 
 12. Of the Mode of Contribution [d). 
 
 {^Lastly, as to the mode of contribution. By the Civil Law, the 
 goods cast overboard were valued only at their invoice price, or prime] 
 
 {a) William X.London Ins. Co.yl'^l.kS. Eleanora CatJiarina, 4 Hob. 156; tlie 
 
 318. See the Progress:, 1 Edwards, 210. North Star, 29 L. J. Ad. 73. In an action 
 
 Bnt see some observations on Williams v. by a shipowner against a merchant to re- 
 
 London Ins. Co., Benecke, p. 315, &c. cover his contribution to a general average 
 
 (/>) 45 L. J. Q. B. 440. loss, it is a good plea that the average 
 
 (e) 7 E. & B. 523 ; 26 L. J. Q. B. 187. loss was occasioned by the unseaworthiness 
 
 {d) A person entitled to receive contribu- of the shi]i. — Schloss v. Heriot, 14 C. B. 
 
 tioii may recover in an action against each (n^-S.) 59, 32 L. J. (x.s.) C. P. 211. Twizell 
 
 person liable to contribute the amount of v. Allen, 5 Mee. & W. 337. There is a lien 
 
 his share. Slieplierd v. fVright, Show. on cargo for general average. Scaife v. 
 
 P. C. 18; BerTcley v. Presr/rave, 1 East. ToJ/h, 3 B. & Ad. 528; Kenp v. llnlUdaii, 
 
 220; Simmonds v. WJiite, 2 B. & C. 804. L. Pv. 1 Q. B. 520. As to there being a 
 
 As to the jurisdiction of the Court of lien for particxdar average, see Kinrisfon v. 
 
 Admiraltv before the .Judicature Acts, see Wendt, .iitpra. As to there not being a lien 
 
 the Consfantia, 4 Notes of Cases, 677 ; the on the ship, see the North Star, supra. 
 
 PacTcef, 3 Mason (Am, Kep.), 255 ; the The SoUomsfen, 36 L. J. Ad. 5.
 
 12. MODE OF CONTRIBUTIOX. 529 
 
 [cost (e) . A practice formerly prevailed in this country to adopt this Chap. 1. 
 
 vakiatioUj if the loss happened before half the voyage was performed ; 
 
 but if it happened afterwards, then to value the goods at the clear 
 
 price which they would have fetched at the place of destination (/) ; 
 
 and this practice still exists in many places abroad (g). But here 
 
 the last valuation is now adopted in all cases where the average is 
 
 adjusted after the ship's arrival at the place of destination, and 
 
 appears best to agree with the nature of the subject (/«) ; for although,, 
 
 as between the proprietor and the insurer of goods, the prime cost is 
 
 tlie only value, the contract of insurance in that case being a contract 
 
 of indemnity against loss, and not a contract for the security of gain, 
 
 yet in this case equity requires that the person whose loss has 
 
 procured the arrival of the ship at the place of destination should be 
 
 placed in the same situation with those Avhose property has arrived 
 
 at that place — which can only be done by considering Ms goods as 
 
 having arrived there also.] But if the ship, in consequence of any 
 
 misfortune, to be sustained by general average, be compelled to 
 
 return to its lading port, such port is to be taken as the port at which 
 
 the adjustment is to be made. 
 
 A vessel Avas chartered to carry salt from L. to C, freight partly 
 prepaid. After proceeding a short distance on her voyage, she was 
 stranded, and part of the salt thrown overboard to get her off, she 
 returned to L. to repair; and the rest of the salt, being unfit to be 
 forwarded, was sold : — Held, that the adjustment of the contribution 
 for general average in respect of the jettisoned salt must be made on 
 the footing of the voyage haAdng terminated atL., and of that port being 
 the port of adjustment, that the jettisoned salt, for the purposes of 
 contribution, must be taken at its value in the state in which it would 
 have arrived at L. if it had not been jettisoned, but remained on 
 board ; that if it would have arrived in the same state as the rest of 
 the cargo, i.e., not fit to be forwarded, it must be taken at the same 
 price as that for which the rest of the cargo sold, and that the pre- 
 paid freight was not to be considered ; but if it would have arrived 
 sound, so as to be worth forwarding, then the value would be the 
 original cost, the shipping charges, the insurance and the freight 
 paid on it (i). Et per Montague Smith, J., ''The general rule, 
 therefore, would be, as I take it, to ascertain the value of the goods 
 as they would have been supposing the goods had not been jettisoned, 
 but had arrived with tlie rest of the adventure. It is for the average 
 adjuster to apply the rule. If he is of opinion in this case that the 
 goods would have arrived in a sound state, then he may give the 
 sound value, and the sound value according to practice (not accord- 
 ing to any rule of law) would be to take the cost value as fairly 
 representing the sound value of the goods, and add to that the shipping 
 
 (e) [Dig. 14, 2, 2, 4.] {h) [It is also the rule of the Ordiii. of 
 
 (/) [Malynes, p. 113 ; and MoUoy, book 2, Wisbuv, art. 39 ; and of the Code de Com. 
 
 ch. 6, sec. 6; Wellwootl, tit. 21.] art. 402.] 
 
 {g) [Emerigon, torn. 1, p. 654. Vinnius (?) Fletcher v. Alexander, 37 L. J. C. P. 
 
 in Peckium, p. 220.] 193 j L. E. 3 C. P. 375. 
 
 3 M
 
 530 OF GENERAL AVEEAGE. 
 
 Part VI. cliargesj insurance, and the prepaid freight upon them, as if the 
 
 goods liad arrived in a state in which they might have been sent on, 
 
 and tlie ship had also arrived in a state in which she might have 
 eventually carried them on. But if the goods would have arrived in a 
 state of damage, which the average-stater thinks npon the evidence 
 would render them utterly unfit to be sent on the voyage, in that 
 case I think he ought to take the damaged value only, and that is the 
 selling price of the goods in the state in which he estimates they 
 would have been had they been brought home in the ship, and of 
 course in that case without the freight/-' 
 
 [And with regard to the loss of masts, cables, and other furniture 
 of the ship, as the new articles purchased will in general be ot greater 
 value than the articles lost, it is usual to compound the difference by 
 deducting one-third from the price of the new articles.] 
 
 13. Hoiv settled and recovered in the Case of Dispute, 
 
 [Supposing, therefore, a general average to be settled npon the 
 ship's arrival at the port of destination, according to the principles 
 before advanced, it is necessary, in the first place, to take an account 
 of the several losses which are to be made good by contribution ; in 
 the second place, to take another account of the value of all the 
 articles that are to contribute — in which must be included the value 
 of the goods, &c., thrown overboard, for otherwise the proprietors of 
 those g-oods will receive their full value, and pay nothing towards 
 the loss. But as this will be most easily understood by an example 
 in figures, I propose the following case, wherein the reader will 
 suppose that it became necessary, in the Downs, to cut the cable of a 
 ship destined for Hull ; that the ship afterwards struck upon the 
 Goodwin, which compelled the master to cut away his mast, and 
 cast overboard part of the cargo, in which operation another part was 
 injured ; and that the ship, being cleared from the sands, was forced 
 to take refuge in Ramsgate harbour, to avoid the further effects of 
 the storm : — ]
 
 13. HOW SETTLED AND EEOOVEEED. 
 
 531 
 
 Chap. 1, 
 
 {^Amount of Losses. 
 
 Goods of A. cast overboard («) £500 
 
 Damage of the goods of B. by the 
 jettison 200 
 
 Freight of the goods cast over- 
 board («) 100 
 
 Price of a new cable, anchor, and 
 mast £300 
 
 Detluet one-third 100 
 
 Expense of bringing the ship off the 
 sands 
 
 Pilotage and port-duties going into 
 the harbour and out, and commis- 
 sion to the agent who made the 
 disbursement 
 
 Expenses there 
 
 Ad j usting this average 
 
 Postasje 
 
 200 
 
 50 
 
 100 
 
 25 
 
 4 
 
 1 
 
 Talite of Articles to Contrlbtde. 
 
 Goods of A. cast overboard £500 
 
 Sound value of the goods of B., 
 
 deducting freight and charges . . . 1,000 
 
 Goods of C 500 
 
 „ of D 2,000 
 
 „ of E 5,000 
 
 Value of the ship 2,000 
 
 Clear freight, deducting wages, vic- 
 tuals, &c. (i) 800 
 
 Total of contributory value.., £11,800 
 
 Total of losses £1,180 
 
 Then £11,800 : £1,180 : £100 : £10. 
 
 — that is, each person will lose 10 per cent, upon the value of his 
 interest in the cargo, ship or freight. 
 
 Therefore A. loses 
 
 B 
 
 C 
 
 D 
 
 E 
 
 The Owners 
 
 £50 
 100 
 50 
 200 
 500 
 280 
 
 Total £1,180, which is the exact amount of the losses. 
 
 Upon this calculation, the owners are to lose 280/. ; but they are to 
 receive from the contribution 380/. to make good their disbursements, 
 and 100/. more for the freight of the goods thrown overboard, or 480/. 
 minus 280/. 
 
 They therefore are actually to receive £200 
 
 A. is to contribute £50, but has lost £500; therefore A. is to receive 450 
 
 B. is to contribute £100, but has lost £200; therefore B. is to receive 100 
 
 On the other hand, C. D. and E. have lost nothing, and 
 are to pay as before, viz.. 
 
 Total to be actually received £750 
 
 C 
 
 \ S: 
 
 (. E. 
 
 £50 
 200 
 500 
 
 Total to be actually paid £750 
 
 — -which is exactly equal to the total to be actually received, and] 
 
 {a) ^^-^ Fletcher X.Alexander, ante,-^. ^2^. visions should be deducted, not from the 
 (S) [A writer of gi-eat practical experi- freight, but from the original value of the 
 ence is of opinion that the value of the pro- ship. — Stevens ou Average, p. 62.] 
 
 2 M 2
 
 532 OF riEXEEAL AYEEAGE. 
 
 Part VI. [must be paid by and to eacli person in rateable proportion^ to be 
 
 ascertained by another calculation^ with which it is unnecessary to 
 
 trouble the reader. 
 
 In the above estimate of losses, I have included the freight of the 
 goods thrown overboard, which appears to be proper, as the freight of 
 these goods is to be paid, and their supposed value is taken clear of 
 freight as well as other charges, although this article is omitted in 
 the example proposed by Pothier («) . But I find it charged in an 
 adjustment of general average given by Magens {b) . 
 
 Before quitting this part of the subject, it seems proper to notice a 
 case analogous to general average. I allude to a case of salvage on 
 capture and re-capture. The question arose between the owner and 
 charterer of a ship. The ship was chartered for a voyage out and 
 home, at a certain rate per ton per month, a certain sum being payable 
 at the commencement of the voyage, and another at the end of a year, 
 and the residue at a certain time after she should be reported at the 
 Custom-house in London. The two first sums had been paid; the 
 owner sued the charterer for the residue. Salvage had been decreed 
 on the ship and cargo ; the latter, and also the expense of obtaining 
 restitution, had been paid out of the price of the goods ; and the 
 charterer now claimed to set off those payments against the demand 
 for the residue of the freight. The goods had been sold for a sum 
 much less than the amount of the residue of the freight. Under these 
 circumstances it was held that the charterer should not pay the salvage 
 on the goods, but should pay a proportion of the expeuses of obtain- 
 ing restitution. The grounds of the decision appear to have been, 
 that the re-capture was no benefit to the charterer, inasmuch as it 
 subjected him to the payment of the freight, and so was in effect bene- 
 ficial to the owner only by enabling him to demand the freight ; and 
 therefore he ought to pay the whole salvage, both on the goods and 
 ship ; but the re-capture having enabled the owner to report the ship 
 at the Custom-house, and thereby given him a right to the freight, 
 whether the goods had been restored or no, the restitution of the 
 goods was beneficial to the charterer, and therefore he ought to bear 
 the expense of obtaining their restitution (c) . 
 
 By the Civil Law, the master of the ship was required to take care 
 to have the contribution settled, and to receive the sums to be con- 
 tributed, and pay them over to the losers, and might sue and be sued 
 for them, or might retain the goods for the sums to be contributed by 
 their proprietors {d) . The same power of retaining the goods is 
 given to the master by the French ordinance, and even the further 
 power of sale, under the authority of a magistrate, to the amount of 
 the sums to be contributed (e). But Yalin acquaints us that this] 
 
 (a) [Traite cles Avaries, num. 133.] (d) [Digest, 14, 2, 2. See Wellwood, 
 
 (b) [1 ]\ragens, 289.] See Fletcher v. tit. 21.] Crookes v. Allen, 49 L. J. Q. B. 
 Alexander, ante, p. 529. 201, ante, p. 528. 
 
 (c) [Cox V. May, 4 M. & S. 152. What {e) [Liv. 3, tit. 8, Du Jet, art. 21.] Sec 
 is here called the freight, is more properly Bedarride, vol. 5, p. 303, No. 1917, arts, 
 the hire of the ship. See Fa%d v. Birch, 428, 429. 
 
 ante, p. 219.J
 
 13. HOW SETTLED AND KECOVEEED. 533 
 
 [power is never, ia fact, exercised in his country (/ ) . Indeed, wliere Chap. 1. 
 
 contribution is to be made according to the price of the goods at the 
 
 place of destination, the exercise of this power is incompatible with 
 the mode of adjustment {g) . In this country, Avhich has no peculiar 
 forum established for these matters, but in which the practice of 
 insurance is very general, it is usual for the broker, who has procured 
 the policy of insurance, to draw up an adjustment of the average, 
 which is commonly paid in the first instance by the insurers Avithout 
 dispute. In case of dispute, the contribution may be recovered 
 either by a suit in equity (A), or by an action at law (?), instituted 
 by each individual entitled to receive, against each party, that ought 
 to pay, for the amount of his share [k). But a court of equity wdll 
 not at the instance of the sufferer restrain the master from parting 
 with the goods of the other merchants if he thinks fit to do so (/) . 
 And in the case of a general ship, where there are many consignees, 
 it is usual for the master, before he delivers the goods, to take a bond 
 from the different merchants for payment of their portions of the 
 average when the same shall be adjusted {m).'] 
 
 The consignee, if he be the owner of the goods, is of course charge- 
 able, but not in respect of the mere receipt of them under a bill of 
 lading, unless it be made a condition in the bill of lading that he 
 shall be so {n). 
 
 [It has been already observed, that in many foreign countries, some 
 losses and expenses are held to be the subject of general average, 
 which are not so held in the law of England, the decisions of our 
 courts being in general founded on a more strict conformity to the 
 principle of the Rhodian lav/, and confining this general contribution 
 to voluntary sacrifices, or to matters in the nature thereof, or con- 
 sequent thereupon.] 
 
 In Fletcher v. Alexander, 37 L. J. C. P. 193, Bovill, C. J., said, 
 " But in the application of the rule, different countries have adopted 
 difterent rules with regard to almost every point coDuected with the 
 statement of average. Upon the general principle all are agreed, but 
 in consequence of those differences in the application of it in the laws 
 of difterent countries, it became necessary to ascertain and determine 
 what laAv Avas to prevail Avhen a vessel started from a port in one 
 countrv, and its destination Avas another, or Avherc the adventure 
 
 (/) Tom. 2, p. 211. {m) [Soduposedby a geiitlemau verycou- 
 
 (^) .Sec ante, p. 52U. versaut with this business in the case of 
 
 {h) [8hei)hei-d v. Wrijht, yhow. Pari 3Ii/et' v. Vaiidcr Deijl, Guildhall Sitting, 
 
 Cas. 18.] heforc Lord Ellenboeougii, Cli. J., Dec, 
 
 (0 [JlarskuM V. DtUi-ej, Select Cases of 1803.] See form iu the Appendix. A 
 
 Evid. 58. Birkley v. Prcsgrace, 1 East, shipowner, where a general average loss 
 
 220. Dobsoii V. W'lhun, 3 Campb. 480.] has occurred, may be liable to an action 
 
 {k) See ante, p. 528, note. for damage for delivering up the cargo 
 
 (0 Uallett V. Buuxjleld, 18 Ves. jun. without taking the necessary steps for pro- 
 
 187. This paragraph, it \\ill be noticed, is curing an adjustment of the general average 
 
 taken from the 5th ed. of this work pub- and securing its payment. Crookes v. Allen, 
 
 lished in 1827. As to the courts of law L. K. 5 Q. B. D. 38 ; 49 L. J. Q. B., &c., 
 
 and equity, &c., now being consolidated in 201. 
 
 one court, see ante, p. 3, n. (e). («) iScaifc v. ToUn, 3 B. & Ad, 523,
 
 534 OF GENERAL AVERAGE. 
 
 Part VI. came to au cud in some intermediate port. And it has noAV become 
 
 the adopted and settled laAv of this country^ and I believe of most 
 
 other countries — indeed every other country, as far as I am aware — 
 that the adjustment must take place according to the law of the port 
 where the adjustment is to be settled. If the vessel reaches her 
 idtimatc destination,, the adjustment must take place according to 
 the law of the port where she so arrives. If the adventure comes to 
 an end, and the voyage is broken up, as it is termed in some of the 
 books (which sufficiently expresses it), at some other port, the adjust- 
 ment must take place at that place, and according to the law of that 
 place. Where the adjustment is to take place in the port of ultimate 
 destination, there seems to be no doubt as to what the law is in that 
 case with regard to the application of the principle, and the value 
 upon which the contribution is to be made." I take the rule as stated 
 in Mr. Serjeant Marshall's book again, p. 502 : " In cases of 
 general average, the things saved contribute, not according to the 
 prime cost, but according to the price for which they may be sold at 
 the time of settling the average. Non quanti emptce sunt, sed quanti 
 veniri possunt is the rule of the Rhodian Law. The same is adopted 
 in the Laws of Wisbuy." And with regard to the adjustment at the 
 place of destination, when the goods are delivered, and the freight 
 has been earned, and the liabilit}- has been incurred, there the goods 
 which arrive are taken upon the value at the port of destination, and 
 that necessarily includes the freight which has been paid upon them. 
 You have to ascertain the value. That being ascertained, the goods 
 which arrive contribute accordingly. If however, after the jettison, 
 or the matter which is the subject matter of average, has arisen, the 
 remainder of the goods are totally lost, so that they are of no value, 
 and the person whose goods they were has not sustained, in the result, 
 any benefit from the jettison, then, according to the law, no contri- 
 bution can be claimed by the owner of the jettisoned goods, nor are 
 the owners of the other goods in the ship bound to make any contribu- 
 tion. The whole law is framed upon the principle of there being a 
 loss to one and a benefit to the other, and the contribution being in 
 strict proportion according to the loss sustained and the benefit 
 derived '^ {a). 
 Ciiscs on [It has been decided by the Court of King^s Bench, that a mer- 
 
 ^^"'"■1? .?> chant who had paid a contribution to an average settled in Portu^ral 
 
 lusurauce. 111.^1 -,• n- • -, " ^ 
 
 snoulcl not recover the amount on a policy 01 insurance in the usual 
 
 form, it not being proved that the adjustment was made according to 
 
 the known law and usage of the foreign country, otherwise than by a 
 
 recital in the decree of the foreign tribunal, by which the average 
 
 had been settled, and which the court did not deem to be sufficient 
 
 evidence of that fact [b] .] 
 
 (rt) Sec Slmmonds v. Whitey2 13. & C. (i) \_Fower \. WhHmore,i^lsLk^.\il.'\ 
 
 805. Macro v. Ocean Marine Ins, Co., Sec Harris v. Scaramanga, 41 L. J. C. P. 
 
 j}ost, p. 535; Hill v. Wilson, 48 L. J. C. P. 178, per Bbett, L. J., Bent v. Smith, 38 
 
 764; L. E. 4 C. P. D. 329. Walpole v. L. J. Q. B. 144. Eosario Messina v. 
 
 Ewer, Park, 629. Xewman v. Cazalef, Eustacltio Fetrococchino, 41 L. J. P. C 
 
 id. 630. 
 
 zt.
 
 13. HOW SETTLED AND RECOVEEED. 535 
 
 If by an English policy of insurance the contract is '' to pay general Chap. 1. 
 
 average as per foreign statement " the general average must be made 
 
 up by a foreign adjuster according to the foreign law (c). 
 
 Where goods insured under a policy against loss by jettison have 
 been lost by jettison,, the underwriters are liable under the policy for 
 the whole of the insured value of the goods jettisoned^ notwithstand- 
 ing the assured may have a right to contribution against the owners 
 of the other interests at risk. After payment under the policy the 
 underwriters would be entitled to the rights of the assured to such 
 contribution {d). 
 
 Where parties^ in order to ascertain average contribution in dis- Action for 
 pute^ agree that an average adjuster for reward shall ascertain and "c^c|igciicc 
 adjust the amount and agree to abide by his decision^ such average avcrai^e ad- 
 adjuster, having given his decision, is not liable to an action for care- justcr. 
 lessness, negligence and unskilfulness, if he has acted in good 
 faith (e). 
 
 (c) Harris v. Scaramanga, 41 L. J. labouring clause, sec AitcMson v. Lohre, 
 
 C. P. 170, L. E. 7 C. P. 481 ; Senclriclcs v. 49 L. J.Q. B. &c., 123. 
 Australasian Ins. Co., 43 L. J. C. P. 188; (d) Dickinson v. Jardine, 37 L, J. C. P. 
 
 Mavro v. Ocean 3Iarine Ins. Co., 43 L. J. 321 ; L. P. 3 C. P. G39. 
 C- P. 339 ; 9 C. P. 595 ; 10 C. P. 414 ; (e) Tharsis Sulphur and Copper Co. 
 
 G-reer v. Fuole, L. P. 5 Q. P. D. 272. As Limited v. Loftus, 42 L. J. C. P. G; L. P. 
 
 to recovering in an action on a policy, 8 C. P. 1. 
 average e.\p eases uuclcr the suing and
 
 536 SALVAGE. 
 
 Part VI. 
 
 CHAPTER II. 
 or salvage; and hekein. 
 
 Sects. 1. Of Salcage generallii,\).h^Q. 
 
 2. Of Salcarje at Common Law, p. 537. 
 
 3. Of ihe Jurisdiction of the High Court of Admiraltii and the Bates of 
 
 Salvage awarded hg it in Cases of Salvage of ShijJS in Distress at Sea and 
 of Derelict, p. 539. 
 
 4. Of Salvage hg Chartered Ship ; Salvage Agreements ; Salvage between Ships 
 
 belonging to the same Owner, or engaged as Consorts in the same Adventure ; 
 Salvage bg Persons employed to render other than Salvage Service ; Salvage 
 of Ships damaged bg Collision tvith the Shi^Js of those claiming from them 
 Salvage remuneration ; Salvage bg licensed Pilots, p. 547. 
 5 Of Salvage bg the Crews of the Mogal Navy, p. 550. 
 
 6. Of the Apportionment of Salvage Seward among those engaged in the Salvage 
 
 Service, )). 551. 
 
 7. Of Salvage for Preservation of Life, p. 556. 
 
 8. Bg whom and in respect of xohat Interests Salvage is payable, p. 557. 
 
 9. Proceedings in Admiralty, p. 559. 
 
 10. Appointment and Duties of Beceivers, under 17 Sf 18 Vict, c, 104, p. 559. 
 
 11. Of Salvage in the United Kingdom; Jurisdiction of Justices, ^'''-j p- 561. 
 
 12. Of Salvage within the Jurisdiction of the Cinque Ports, p. 565. 
 
 13. Of Salvage on Becapture, p. 567. 
 
 14. Of Salvage of Ships and Merchandise found in Possession of Pirates, p. 572. 
 
 1. Of Salvage generally. 
 
 [It seems proper in the next place to consider a subject which the 
 dangers of navigation fre(|nently render alike interesting to the ship- 
 OAvner and to the merchant ; namely^ the compensation that is to be 
 made to other persons, by -whose assistance a ship or its lading may 
 be saved from impending peril, or recovered after actual loss. This 
 compensation is known by the name of salvage, and at present is 
 commonly made by payment in money ; but in the infancy of com- 
 merce was more frequently made by the delivery of some portion of 
 the specific articles saved or recovered. 
 
 All foreign codes of maritime law, both ancient and modern, con- 
 tain provisions and enactments on this head (a) . In some of them, 
 the value to be paid is fixed at a certain portion of the articles saved, 
 or of their value, according to their nature and quality, or the cir-] 
 
 {a) See the Calypso, 2 Hagg. 218.
 
 2. AT COMMON LAW. 537 
 
 [cumstances of the case. But it is obvious that positive and settled Chap. 2. 
 
 rules are little adapted to the administration of justice in varying and 
 
 unsettled cases ; and what can be more various and unsettled than 
 the degrees of labour experienced on the oceaUj or the degrees of peril 
 to which persons who engage in the meritorious task of assisting the 
 distressed on that element^ arc at different times exposed? And 
 therefore^ in the case of wreck or derelict at sea, the law of England, 
 like the law of some other countries, has fixed no positive rule or rate 
 of salvage, but directs only, as a general principle, that a reasonable 
 compensation shall be made. The legislators of all civilized and com- 
 mercial states in modern times {b) have laboured earnestly to repress, 
 by due severity of punishment, the barbarous spirit of plundering the 
 helpless and distressed mariner, whose situation calls for assistance 
 and relief. And very salutary provisions have been made on this 
 subject by the wisdom of our own Parliaments (c), but which I shall 
 forbear to detail, as not properly belonging to my subject, and pro- 
 ceed to the consideration of salvage ; first, with regard to effects pre- 
 served from the perils of the sea; and, secondly, with regard to 
 eflects retaken from an enemy, into whose hands they may have 
 fallen.] 
 
 As to compensation for labour incurred in consequence of signal 
 of distress improperly made, see 36 & 37 Vict. c. 85, s. 18. 
 
 3. Of Salvaf/e at Common Law. 
 
 [A person, who by his own labour preserves goods which the 
 owner, or those entrusted with the care of them, have cither abandoned 
 in distress at sea, or are unable to protect and secure, is entitled by 
 the common law of England to retain the possession of the goods 
 saved, until a proper compensation is made to him for his trouble (d) . 
 This compensation, if the parties cannot agree upon it, may by the 
 same law be ascertained by a jury in an action brought by the salvor 
 against the proprietor of the goods (e) : or the proprietor may 
 tender to the salvor such sum of money as he thinks sufficient, and 
 upon refusal to deliver the goods, bring an action against the 
 salvor; and if the jury think the sum tendered sufficient, he will 
 recover his goods or their value and the costs of his suit. But a 
 perron, even though he may be the lord of the manor, cannot entitle 
 himself to a claim of salvage by taking possession of a wreck or parts] 
 
 (h) [1 li.ivc used the words '"in modem (d) [Mari/ord v. Jones, 1 Lord Rayin. 
 
 times," because, formerly, the claim of the 393.] Nicholson v. Chapman, 3 Hen. 13. 
 
 sovereign power in some countries was not 257- Aitchison v. Lohre, 49 L. J. Q. 13. 
 
 less barbarous than the temper of the in- &c., 123. Newman v. Walters, 3 B. & P. 
 
 habitants. See Valiu's preface to tit. 9 of 612. Baring v. Day, 8 East, 57. Kingston 
 
 book 4, of the French Ordinance] v. Wendt, 45 L. .J. Q. B. 410. As to 
 
 (c) [Sec the statutes 3 Edw. 1, e. 4; abandoning lieu by agreement, sec sect. 
 
 4 Edw. 1, stat. 2, s. 2; 12 Anne, stat. 2, 497; as to abandoning lien by taking a 
 
 e. 18; 2G Geo. 2, c. 19, and 1 & 2 Geo. 4, salvage bond, sec sects. 486—496. 
 
 c. 75 and 76 ; 1 Black. Com. chap. 8, s. 11.] (e) Liiison v. Earrison, 2 W. E., Q. B. 10.
 
 538 SALVAGE. 
 
 Part VI. [thereof against the consent of those avIio are at hand and npon the 
 
 spot, employed by the OAvner of the ship to save and preserve them («). 
 
 And if one set of persons have taken possession of a vessel abandoned 
 at sea, and are endeavouring to bring it into port and save it, another 
 set liaA'e no right to interfere with them and become participators in 
 the salvage, unless it appears that the first "would not have been able 
 to eft'ect the purpose without the aid of the others {b) . Nor, if a 
 vessel be preserved, the cargo of which consists of government stores, 
 is the dispossession of the original salvors by the officers of a Icing's 
 ship warranted by law, without reasonable cause for their interference. 
 Should, however, persons be found in possession, who, from want of 
 experience, may be unfit to be trusted with valuable property, or who 
 have been guilty of gross misconduct, which may render their re- 
 moval proper and necessary, the interference of the king's officers 
 may in such cases be not only justifiable but even laudable (c).] 
 
 A salvor is defined to be one, who, as a volunteer at sea or on 
 land (d) assists a ship in distress (e) . The officers and crew of a 
 ship cannot in general claim salvage in respect of service rendered 
 toit(/). 
 
 Express demand or express acceptance of salvage services actually 
 performed is not necessary to entitle salvors to salvage reward {(/) . 
 
 It being the duty as well as the interest of all persons on board a| 
 ship in distress to contribute their aid for its rescue, a passenger iai 
 not entitled to make a claim for the ordinary assistance he may bej 
 enabled to afford on such an occasion {/i) . [He is not, however^ bound] 
 to remain on board the ship in time of danger, but may quit it if he! 
 has an opportunity to do so ; much less is he required to take upon] 
 himself any responsibility as to the conduct of the ship. And, there- 
 fore, in the folloAving case, a passenger was permitted to recover a] 
 A^ery considerable sum for extraordinary services performed ant 
 responsibility incurred.] A ship, bound to the West Indies, struel! 
 upon the shoals off Chichester in a gale of Avind, and in that situation! 
 Avas deserted by the master, Avho took part of the crew with him. Aj 
 person who had commanded vessels in the same trade, and was then! 
 on board as a passenger, took the command of the ship by the desire 
 of the passengers, and Avith the consent of the mate and the re-J 
 maindcr of the crew, and carried her back in safety to Ramsgate' 
 harbour. At the trial of the cause. Lord Alaanley, C. J., told the! 
 jury, that as the plaintiff appeared to have placed himself in a situa-f 
 tion of responsibility, and Avould have been ansAverable for neglect or! 
 misconduct, he Avas entitled to be paid something for his service — 1 
 
 (a) ISidtoii V. Suck, 2 Taunt. 302.] (/) The Gocenior Hq^cs, 2 Dods. 14. 
 
 {b) [The Ilaria, 1 Edw. 175.] The The Florence, 16 Jitr. 572. The Wairior, 
 
 Charlolta, 2 Hagg. 361. The En.fjene 1 Lush. 476. The Vrcde, 1 Lush. 322. 
 
 Bourne, 3 Hasg. Ad. l\ep. 156. Tlie bee pos(. 
 
 i;/fb;-^,3 Hagg.^i65. Queen Mab,Z lh\<^^, (r/) The ^HMopo?/*, 1 Lu.sh. 355. As to 
 
 242. " signals of distress, sec 36 & 37 A*ict. c. 85, 
 
 (c) {JBlemJen Hall, 1 Dods. Rep. 414.] s. 18. 
 
 \d) Tlie 3Iarii Anne, Haffg. 158. {h) The Bransfon, 2 Hagg. 3, n. 
 
 (e) The Sepiune, 1 Hagg. 236.
 
 I 
 
 3. JITEISDICTIOX OF COURT OF ADMIRALTY, &C. 539 
 
 and they gave 400/. Au application was made to the Court of Com- Chap. 2. 
 raon Pleas in the ensuing term to set aside the verdict^ but the court 
 refused to do so (i) . 
 
 The rights of original salvors are always jealously maintained by 
 the Court of Admiralty {k) ; even where their efforts have been unsuc- 
 cessful until the arrival of other assistance, a large share of salvage 
 has been allotted to them {I) : but it is otherwise if, having laboured 
 unsuccessfully, they abandon the ship without intention of returning, 
 and she is afterwards got off by others (m) . If the ship be in distress 
 and accept the services of strangers, they are entitled, though the 
 work done by them be of little difficulty or importance, to a salvage 
 remuneration, their claim to which is not prejudiced by an injury 
 sustained by the distressed ship from the negligence of a licensed 
 pilot in whose charge it was given by them after bringing it to a 
 situation of safety, though not to anchor {n) . 
 
 3. Of the Jurisdiction of the Hiyh Court of Admiralty , and of the 
 Rates of Salvage awarded by it in Cases of Salvage of Ships in 
 Distress at Sea and of Dei^elict. 
 
 Before the Acts of Parliament presently mentioned, if the salvage jmisaictloii 
 was performed at sea (o), or between high and low water-mark {p), of Court of 
 the Court of Admiralty had an original jurisdiction over the subject, ^^^^""■''^t^ 
 and would fix the sum to be paid, and adjust the proportions, and 
 take care of the property pending the suit ; or if a sale was neces- 
 sary, dii'ect a sale to be made, and divide the proceeds betAveen the 
 salvors and the proprietors, according to equity and reason. 
 
 This jurisdiction was extended by the 3 & 4 Vict. c. 65, s. 8, to all 
 claims and demands whatsoever in the nature of salvage for services 
 rendered to or damage received by any ship or seagoing vessel, or in 
 the nature of towage, and to the enforcing of payment thereof, 
 whether the ship may have been within the body of a county or upon 
 the high seas at the time when the services were rendered. 
 
 By the 17 & 18 Vict. c. 104 (§-), the Court of Admiralty had juris- 
 diction to decide upon all claims relating to salvage, whether the 
 services in respect of which salvage was claimed were performed upon 
 the high seas or within the body of any county, or partly in one place 
 and partly in the other, and whether the wreck was found at sea or 
 cast upon the land, or partly in the sea and partly on the land, and 
 
 (t) Nemian v. Wallers, 3 B. & P. 612. (o) Sec 6 Rob. 39, and the case of Baxier 
 
 (k) The Charlotta, 2 Hagg. 364. Tbe v. Reader, there cited. 
 Glorii, 14 Jur. 678. The Pickwick, 16 Jur. {p) 1 & 2 Geo. 4, c. 75, s. 31. The Court 
 
 670. The Effort, 3 Hagg. 165. The Glas- of Admiralty had jurisdictiou over an 
 
 goio Packet, 2 W. Rob. 313. agreement for salvage service, though it was 
 
 [I) The Gennessee, 12 Jur. 401. made on shores The Catherine, 12 Jur. 
 
 0«) The IiicJiaii, 1 W. Rob. 406. The 682. 
 Zephyrus, ib. 330. (g) Sect. 476. 
 
 (») The Bomarsund, 1 Lush. 17.
 
 540 SALVAGE. 
 
 Part VI. the jurisdiction of this court was further exteucled and the practice 
 
 amended hy the 24 & 25 Vict. c. 10. 
 
 It seems that under the County Courts Admiralty Jurisdiction 
 Act^ 1868j the High Court of Admiralty may in its discretion take 
 cognizance of salvage suits Avheu the value of the property saved is 
 under 1,000/. (ft). 
 
 By the Judicature Acts, the High Court of Admiralty became, 
 and is now, part of the Supreme Court of Judicature. (See ante, 
 p. 3, note). 
 
 A ship of war belonging to and duly commissioned by a foreign 
 
 government is not -within the jurisdiction of a British municipal 
 
 tribunal. A warrant of arrest in an action of salvage in rem cannot, 
 
 therefore, be issued against such ship out of the Admiralty division, 
 
 nor against the cargo on board, even though it is the property of 
 
 private persons, if the goods in question are under the charge of the 
 
 government for public purposes {b). 
 
 Amount of [In fixing the rate of salvage, the Court of Admiralty usually has 
 
 salvage regard not only to the labour and peril incurred by the salvors, but 
 
 awarded. ^^^^ ^q ^j^^ situation in which they may happen to stand with respect 
 
 to the property saved, to the promptitude and alacrity manifested by 
 
 them, and to the value of the ship and cargo, as M'ell as the degree 
 
 of danger from which they Avere rescued (c).] 
 
 To owners of vessels, which, in rendering assistance, have either 
 been diverted from their proper employment, or have experienced a 
 special mischief, occasioning delay, injury, and loss, equitable com- 
 pensation is frequently awarded by the Court of Admiralty [d) . " As 
 to the OAvners,^^ said Sir Christopher Robixsox, in the case of the 
 Jane (e), "the general principle of law is, that their claim is very 
 sHght, unless, from the circumstances of the case, their property 
 becomes exposed to danger, or they incur some real loss and incon- 
 venience. There was no danger to their property in this case ; but in 
 the detention of their vessel, and consequential risk and expenses, I 
 think there is strong foundation on their part for a claim to share in 
 the salvage." In one case, where the sum of 4,000/. was allowed for 
 salvage, one-half was allotted to the owners of the assisting vessel, on 
 the ground of the injury she had sustained, by the great weight of 
 the articles saved, and the risk she ran of Adtiating her insurances by 
 
 (a) The Herman Wedel, 39 L. .J. Ad. 30 ; WilUam BecJcford, Muirliead. At the Delc- 
 
 soe the Siella, 36 L. J. Ad. 13. As to the gates, 17th and 24th Nov. 1801, MS. 3 Hob. 
 
 county courts Admiralty jurisdiction, and 355, S. C] 
 
 as to oth^'r courts having Admiralty juris- (f/) The Vine, 2 Hagg. 1. Tlic Mul- 
 
 diction, sec preface to this edition, and see grave, 2 Hagg. 77. The Salacia, 2 
 
 lb. ixwCi post, s. 11 of this chapter, as to the Hagg. 262. 
 jurisdiction of justices iu certiiin cases. (e) Those who remain on hoard the 
 
 {b) The Constltuiion, 48 L. J. Ad. 13 ; salviug vessel usually share the salvage, if 
 
 see the Charkieh, 42 L. J. Ad. 17; L. K. ready to encounter the peril, though not to 
 
 4 A. & E. 59, 2^ost, p. 580. the same extent as those actually engaged 
 
 (c) In the Upnor, 2 Hagg. 3, salvage in the service. The Baltimore, 2 I)ods. 
 
 was refused for bringing into" port a barge 132. The Charlotte, 2 W. Rob. 495. The 
 
 found, without anchor or crew, aground, Jane, 2 Hagg. 338. The Sarah Jane, 2 
 
 on evidence that it was not uncommon to ^^^ Kob. 119. The Jlountaiiieer, 2 W. Kob. 
 
 leave barges where the barge was, and 7; but see the i'm/nff, 3 W. Kob. 131. 
 fetch them oti' afterwards. [See also the
 
 3. JURISDICTION OP GOUET OF ADMIRALTY, &C. 541 
 
 increasing tlie peril of her voyage. Upon the same principles, in the Chap. 2. 
 
 case of the Thetis {f), the claim of the commissioners of the Admiralty 
 
 to share in the salvage reward, in respect of the wear and tear o£ the 
 vessels employed in the salvage service^ and the stores supplied to 
 them was admitted {(/) . 
 
 It will he presumed, in favour of salvors, should their vessel 
 be injured or lost in the course of the salvage service, that the 
 misfortune was caused hy the necessities of that service, and not by 
 their own default, the burthen of proof to the contrary being thrown 
 upon the defendant {h) . If salvors have misconducted themselves, or 
 acted negligently or unskilfully, although their services may upon 
 the whole have been meritorious, a smaller amount of salvage than 
 would otherwise have been given will be accorded to them (i) ; and 
 in cases where there have been great negligence and delay, or 
 improper interference with the authority of the owners or master of 
 the ship in distress, salvage has been wholly refused {k) . It has been 
 refused also to salvors who, induced by an amlnguous signal, had put 
 off to the assistance of a ship which proved to be in want of a pilot 
 only. But if a ship really needs more than pilotage service, any 
 signal made by it will be interpreted as a request for salvage assist- 
 ance (J). [The court will not suffer a claim of salvage to be imposed 
 on the local ignorance of foreigners who cannot be expected to be 
 well acquainted with our coasts, although a recompense must be made 
 for the service actually rendered to them (m) .] Information given 
 to a ship is not, except under special circumstances, a salvage ser- 
 vice {ii) ; but a cutter, which in tempestuous weather had approached 
 as near as it safely could to a vessel making signals of distress, and 
 contributed by opportune advice to her extricatiou, was held entitled 
 to a salvage reward (o) . 
 
 ^^ Salvage," said Sii* John Nicholl (jo), "is not always a mere 
 compensation for work and labour; various circumstances, upon 
 public considerations, the interests of commerce, the benefit and 
 security of navigation, the lives of the seamen, render it proper to 
 estimate a salvage reward upon a more enlarged and liberal scale. 
 The ingredients of a salvage service are, firsi, enterprise in the 
 salvors in going out in tempestuous weather to assist a vessel in 
 distress, risking their own lives to save their fellow-creatures, and to 
 
 (/) Post, pp. 542, 552. Citi/ of Edinhurgh, 2 Hags?. 333. The 
 
 {g) The Waterloo, 2 Dods. 436. But Neptune, 1 W. Eob. 297- The Bide of 
 
 in oue case, the court refused to increase Manchester, 2 W. Rob. 470. And see the 
 
 the share of the owners on account of tlie Charles AdoIphe,Hwah. 153. 
 
 probable vitiation of a policy of insurance (I) The Little Joe, 1 Lush. 88. 
 
 on the ship, and said that in apportioning («j) The Vromo Margaretha, 4 Rob. 
 
 a salvage remuneration it would consider 103. 
 
 every vessel as uninsured. The Deveron, (w) The Little Joe, supra. 
 
 1 W. Rob. 180. (o) The Miza, 1 Lush. 586. 
 
 (Ji)'W\Q Thomas 'Bliith,\\A\%\\.\Q. (p) The Clifton, 3 Hagg. 117. The 
 
 (i) The John and Thomas, 1 Hagg. 175. London Merchant, ibid. 395. See also the 
 
 The Dantzic Facket, 3 Hagg. 383. The observations of the learned judge in the 
 
 Black Bog, 3 Hagg. 386. The Glasgoiv case of the Hector, 5 Hagg. 90, and the 
 
 Packet, 2 W. Rob. 306. The Dosseitei, Industrg, 3 Hagg. 203. Colby v. Watson, 
 
 10 Jur. 865. The Cape Packet, 3 W. Rob. 6 Moore, P. C. (J. 334. The Cleopatra, 47 
 
 122. The Minnehaha, 1 Lush. 343. L. J. Ad. 72. 
 (Jc) The Barefoot, 14 Jur. 841. The
 
 542 SALVAGE. 
 
 Part VI. rescue the property of their fellow-subjects. Secondly, the degree of 
 danger and distress from which tlic property is rescued^ and whether 
 it was in imminent peril and almost certainly lost, if not at the time 
 rescued and preserved. Thirdly, the degree of labour and skill which 
 the salvors incur and display, and the time occupied. Lastly, the 
 value. "Where all these circumstances concur^ a large and liberal 
 reward ought to be given; but where none, or scarcely any take 
 place, the compensation can hardly be denominated a salvage com- 
 pensation; it is little more than a mere remuneration pro opere et 
 labor e." It is impossible to lay down any positive rule for assessing 
 the amount of salvage. When not fixed by enactment {a), it must 
 necessarily rest in an enlarged discretion, to be exercised according 
 to the circumstances of each case [b). The Court of Admiralty 
 considers not simply the amount of service, but the general interests 
 of navigation and commerce (c). It does not recognize the rule of 
 proportion, but accords an equitable recompense for the service 
 rendered. A small proportion, where the property is very large, may 
 be sufficient for these objects ; where the property is very small the 
 proportion must be, and is usually large in order to encourage the 
 exertions of salvors {d) . Rarely less than one-thii'd or more than 
 one-half of the property saved is given, unless the services have been 
 very inconsiderable, or the amount of the property has been very 
 great {e). Sometimes, however, a fifth, sixth, or tenth only has 
 been aAvarded, and even less (/). In a case of derelict of very small 
 value, no owner appearing, the whole net value, 35/,, was allowed {g). 
 "Where arbitrators had given one -fourth of the value of a ship, and it 
 •was agreed that the salvage payable for the cargo should be referred 
 to the Court of Admiralty, that court, the cargo being valued at 
 38,000/., awarded 1,000/. for contingent losses, 1,500/, for salvage 
 reward, and 200/. for the master's expenses. 
 
 In one case of extraordinary service, where private treasure and 
 government stores lost on board a king's ship to the amount of 
 157,000/. were recovered by officers and men of the lloyal Navy, 
 54,000/. Avas finally awarded, including the expenses, and a compen- 
 sation to the Admiralty for the pay, victualling, wear and tear of his 
 Majesty's ships while employed upon that service (//) . 
 
 [In the case of a homeward-bound West India ship taken by the 
 French, near the coast of Jamaica, and recaptured by persons going 
 in boats from the shore, one-sixth Avas allowed for salvage ; and, as 
 the voyage homeward, and consequently the right to freight had com-] 
 
 (rt) See post, p. 543. (e) The Britannia, 3 Hagg. 153. The 
 
 (i) The Salacia, 2 Hagg. 262. The Queen Mab, ibid. 242. 
 
 Thetis, 3 Hagg. 62. The Eioel Grove, (/) Pritchard, Admiralty Digest, tit. 
 
 ibid. 221. The Traveller, ibid. 371. The Salvage. The Bed Rover, 3^V. K. 160. 
 
 London Merchant, ibid. 395. The Graces, {g) The Castletoion, 5 Irish Jur. 379 ; 
 
 2 W. Rob. 294. and see the Frances Mart/, 2 Hagg. 89. 
 
 (c) Ibid. And see the Sarah, 1 Rob. The Tlebecca, ibid. 90. ' The William 
 
 313. Tlie William Bedford, 3 Rob. 355. HamiUon, 3 Ha??. 168. 
 
 The Hector, 3 Hagg. 90. (/«) H.M.S. Thetis, 3 Hagg. 14; 2 
 
 id) The Effort, '"ibid. 165. The Inca, Knapp, p. 390, post, p. 552. 
 Swab. 370.
 
 3. JUEISDICTION OF COURT OF ADMIEx\LTY, &C. 543 
 
 [menced, and the freight was ultimately earned, the salvage was paid Chap. 2. 
 upon the freight as well as the ship and cargo (i). So in the case of 
 the English ships liberated from the French upon the occupation or 
 capture of Oporto by the British and Portuguese troops, salvage was 
 allowed upon the freight of such of them as had gone out from 
 England in ballast, under contracts to fetch home cargoes {k) . 
 
 In the case of a British ship, purchased at sea from a French 
 privateer by an American captain, whose own ship had also been 
 taken by the same privateer, and who was allowed to take his own 
 and the British crew on board the purchased ship, and who was con- 
 sidered to have fairly intended to restore the British ship to her 
 owners, the owners were directed to protect him against the bills 
 drawn for the purchase, and also to pay him a sum of money equal 
 to about one-seventh of the value, after deducting the purchase- 
 money (/). 
 
 In the case of a slave ship rescued from insurgent slaves on the 
 coast of Africa, by another vessel employed in the same trade, one- 
 fent/i of the value was allowed {m). In the case of a Danish ship, 
 deserted by its crew on the English coast, and brought into Harwich 
 Avithout any considerable danger, two-fifths were decreed for ' 
 salvage [n] . In the case of another ship, which having struck upon 
 a rock, lost her rudder, had her bottom beaten in, and been deserted 
 by the crew, was weighed off with great peril by one set of persons, 
 aad placed in such a situation as to enable the master to bring off 
 some bullion, but which afterwards sunk, and was again weighed up 
 and brought into Harwich by another set of persons, two-thirds were 
 decreed, and the amount distributed rateably among the first and 
 second set of salvors (o).] 
 
 Where the master of a whaler and a boat^s crew of five men had 
 gone, at the imminent peril of their lives, to rescue a vessel dismasted, 
 with the water making a breach over her, when they assisted in 
 rigging a jurj^-mast, and afterwards towed the vessel during six days 
 to Plymouth, the court awarded 1,200/. out of a value of 
 7,000/. [p). 
 
 In another case, where a ship with government stores was pre- 
 served by thirty-two salvors, at great risk to all, and with loss of life 
 to three, besides damage to and loss of boats, the owners of the ship, 
 estimating her at 1,500/., tendered 400/. as salvage for the ship and 
 freight. The stores were valued at 5,000/. The court, adopting the 
 tender, gave 900/. in addition to the stores, making together a 
 salvage of about one-fifth, and apportioned the sum among the 
 surviving salvors and the families of those who perished [q). 
 
 [In another case, where a captured ship had been deserted by the] 
 
 (0 [The Dorothy Foster, 6 Eob. 88.] (») The Fortuna, 4 Rob. 193. 
 
 ButseetheiS'orma,iLush.l24,^05/, p. 546. (o) [The Jong e Bast iaan, 5 Rob. 322.] 
 
 {Ic) [The Progress, 1 Edw. 210.] The The Jubilee, 3 Hae^. 43, note. 
 Bacehorse, 3 Rob. 301. {}}) The Jane, 2'ilAgs;. Ad. Rep. 338. 
 
 (0 The mnrif, 1 Edw. 192. (q) The Marquis ofHimilei/, 3 Hagg. 
 
 {m) The Trelamieij, 4 Rob. 223. Ad. Rep. 246.
 
 544 
 
 SALVAGE. 
 
 Part VI. [captors, and was recovered and saved with great risk, trouble, and 
 discretion, a moiety was given («).] 
 
 High salvage lias frequently been awarded where steam-boats have 
 beeii used in the salvage service on account of the great power and 
 efficient aid rendered by such vessels (b). "Formerly," said Dr. 
 LusHiNGToXj in one case (c), "the claims of owners of vessels to 
 participate in salvages, did not receive very favourable attention 
 from the judges who preceded me in this chair; but since then, things 
 are much changed : steamers are able to render important salvage 
 services, in which the ship herself is the chief agent. I have, there- 
 fore, departed from the former practice, and have given adequate 
 rewards to the owners of such vessels.''^ And again {d), "The steam- 
 ship Ta(jus, in the service of the Peninsular and Oriental Steam 
 Navigation Company, carrying her jNIajcsty^s mails, and having on 
 board sixty-two passengers, . . . took the Martin Luther, a vessel of 
 1,200 tons, having on board no less than 500 passengers . . . when 
 drifting to leeward, in a state of great peril, with onlv one mast 
 standing, and one sail left, and brought her into Plymouth. Nom', 
 a master who commands a ship like the Tutjus, incurs very great 
 responsibility, when he takes upon himself to employ his ship, laden 
 with passengers and mails, in any service than that in which she 
 is engaged. The value of the property is 12,000/. I think that 
 the sum which I ought to give, as near as I can form a judgment 
 upon it, with reference to all the facts of the case, is 1,500/. I sliall 
 allot 600/. to the owners, and for this reason, because their property 
 was engaged ; and also, for another and obvious reason, that unless I 
 encourage the owners of steamers that are able to perform the most 
 efficient services, it may folloAv, and this has often been suggested to 
 the court, that orders will be given to the masters of these ships, 
 that, except in cases of saving life, they shall never engage in an}'- 
 salvage service at all. I shall give 400/. to the master, for I think 
 that, the master on all these occasions is a person that ought to bo 
 justly encouraged, because upon him entirely rests the responsibility 
 of employing the ship. He has no right to deviate from the usual 
 employment of the ship, except in strong cases of urgent necessity ; 
 and if he deviates from that employment without sufficient cause, he 
 is liable, and most justly liable. I shall allot to the master 400/., and 
 the remaining 500/. I shall give to be divided among the crew;'^ and, 
 where a vessel lying in a dock, surrounded by warehouses, Avhich 
 were on fire, had been towed from it by a steamer to a place of 
 safety, the steamer was held entitled to a salvage reward (e). 
 Derelict. [As to derelict, which, if no OMuer appears, becomes the property 
 
 of the crown, it was formerly the settled practice of the Court of] 
 
 («) The EUlotta, 2 Dod. 75. {c) Tlie Sinrit of the Age, Swab. 286. 
 
 (i) The Haikes, 1 Ha^g. 246. The \d) The Mariln Luther, S«ah. 287. 
 
 London Merchant, 3 Hagfj. 394.. The \e) The Tees, 1 Lush. 505. The Aljen, 
 
 Earl Orey, 3 Hagg. 363. The Shannon, Swab. 189. 
 11 Jurist, 1045. The Palmyra, 1 Asp. 
 Mar. L. Ca. 182.
 
 3. JUEISDICTION OF COUET OF ADMIEALTY, &('. 545 
 
 [Admiralty to give a moiety to the finders as salvors, but in later Chap. 2. 
 times the rewaixl has liccome discretionary (/).] 
 
 In order to constitute derelict it is sufiieient that there has been an 
 abandonment at sea by the master and crew without hope of 
 recovery. A mere quitting of the ship, as by jumping, from the 
 sense of imminent danger, on board another in collision with her {g) , 
 or for the purpose of procuring assistance from the shore, or with 
 the intention of returning to her again, is not an abandonment (A). 
 But where a master and crew left a ship to save their lives, a mere 
 intention on their part to send a steamer to look after the forsaken 
 vessel, will not affect the question (i) . 
 
 Although the rule is now deemed a flexible one, the Court of 
 Admiralty inclines to a moiety as the favourite amount, and 
 requires some peculiar circumstances to displace it [k). A ship 
 deserted by her master and crew, was taken possession of in a state of 
 derelict by a sloop of war and a transport, and, after great exertion 
 on the part of both, was brought into port. '' In no instance,^^ said 
 Lord Stowell, '' except where the crown alone has been concerned, 
 and where no claim has been given for a private owner, has more than 
 one-half been decreed by way of salvage. As this property is 
 valuable, the nett proceeds of the ship, cargo, and freight amounting 
 to more than 1 2,000/., there seems no reason for going beyond this 
 rule upon the present occasion. I have no doubt of allowing a moiety; 
 and the only question then is, respecting the apportionment between 
 the salvors, of the sum so allotted. Now, the king^s ship is, I think, 
 to be deemed the principal salvor ; the commanding officer of the ship 
 having presided on the occasion, and given the necessary directions as 
 to the best and most efficacious mode of saving the property ; but it 
 must, at the same time, be taken into consideration, that the chief 
 part of the labour lay upon the crew of the transport. In order to 
 make an equitable division between the parties entitled, it appears to 
 me that some reference should be had to the number of persons on 
 board each of the ships. The crew of the transport, it should seem, 
 consisted of thirty-six men ; and though it does not appear from any 
 evidence in the cause what might be the exact number on board the 
 king^s ship, yet, judging from the size of the L'Espitgle (the sloop), 
 and from the number of hands usually allotted to vessels of the same 
 rate and description, the probability is, that there were from ninety 
 to one hundred and twenty men on board that ship. Without enter- 
 ing into any very minute distinctions upon this point, I shall direct 
 three-fourths of the salvage money to be paid to the commander. 
 
 (/) \J\\QA(iulla, 1 Eob.37. Welwood's foot, 14 Jur. 841. The Ficlcioick, 16 Jur, 
 
 Sea Laws, tit. 24.] The Rasclie, 42 L. J. 6G9. The Clarissa, Swab. 129. 
 
 Ad. 71; L. R. 4 A. & E. 127, where more (i) The Coromandel, Swab. 205. 
 
 than a moiety was awarded. The Hehe, (A) L'Esperance, 1 Dods. 46. The Blen- 
 
 L. R. 4 P. & A. D. 217; s. 450. den Hall, ibid. 421. The Ellioita, 2 Dods. 
 
 iff) The Fenix, Swab. 13. The Zefa, 44 75. The FoHuna, 4 Rob. 194. The Ffforf, 
 
 L. .1. Ad. 22 ; L. R. 4 A. & E. 460. 3 Hagg. 75. The Sarah Bell, 4 Notes of 
 
 {h) The Aqnila, 1 Rob. 37. The Bare- Cases, 146. The George Dean, Swab. 290. 
 
 The Inca, ibid. 370. 
 
 2 N
 
 546 SATA'AOE. 
 
 Part VI. officers^ and crew of the sloop UEsp'icgle, and the remaining one-fourth 
 
 to the master, officers, crew, and owner of the transport vessel'^ («). 
 
 Services must llcscuc of, or at least benefit to the distressed ship by the salvage 
 lie beiu'fici:'.!. service, is an essential clement of the claim for salvage reward. It is 
 not given for fruitless exertions, however meritorious {b). But if the 
 ship be finally rescucd_, persons Avho have unsuccessfully endeavoured 
 to save her, although they must have failed in the attempt but for 
 the more efficient exertions of others^ may be entitled to share their 
 recompense (c). 
 Salvors need [It is uot ncccssary for salvors, in order to maintain their rights, to 
 not remain on remain on board tlie vessel which has received their assistance ((/).] 
 board. rjij^g salvagc is to be assessed on the value of the property saved at 
 
 How value of ^|^g place where the services of the salvors ended (e) . In applying 
 savaUo be ^^^^^ rule to the case of freight, which, unless under circumstances 
 ascertained, implying a new contract joro rata itineris peracti (/) is not due until 
 the cargo is at the port of destination, the Court of Admiralty pro- 
 ceeds upon equitable principles, considering rather what service in 
 respect of the contract for freight has been rendered than what freight 
 has been earned. And, therefore, where a Queen's ship fell in with 
 a barque utterly disabled by a hurricane, on her voyage from Hon- 
 duras to Falmouth, and towed her into Bermuda, where she was 
 refitted at an expense equal to her whole freight, and afterwards com- 
 pleted her voyage and delivered her cargo ; the court, considering 
 that a large portion of the voyage had been performed, and that the 
 entire benefit of so much, though subject to the expenses, had been 
 preserved from immediate and absolutely total loss, awarded half of 
 the gross freight (</) . 
 ^Miere part "Where a part owner of the salvagc vessel has an interest in the 
 
 owner of yesscl salvcd, the co-owners and the master and crew of the salving 
 has mterest in vessel may suc for salvage, but the amount of the share of salvage to 
 ship saved. which their part owner would have been entitled had he not been 
 interested in the vessel salved, must be deducted from the amount 
 of salvage, which would otherwise have been recoverable by the 
 salvors {h). 
 Where other lu a cause of salvage in determining the amount to be paid to the 
 salvors. plaintiffs the court may take into consideration the amount ordered 
 
 to be paid out of the property saved to other salvors {i). 
 
 (a) rUspn-ance, 1 Dods. 46. (rf) The Bleanora Charlotta, 1 Hagg. 156. 
 
 (//) The Zej)fii/n'.s, 1 W. Rob. 330. The (e) The George Dean, ibid, supra. 
 
 India, ibid. -iOG. The Edioard Hawkins, (/) See ante, p. 368. 
 
 1 Lush. 515. Ig) The Norma, 1 Lush. 124. 
 
 (c) The Jonge BasHaan, 5 Rob. 322. The {h) The Caroline, 1 liUsh. 334. 
 
 Undaunted, 1 Lush. 90. The Atlas, 1 Lush. (/) The Antilope, 42 L. J. Ad. 42; L. R. 
 
 518. 4 A. & E. 33.
 
 4, BY CHARTERED SHIPS, &C. 547 
 
 Chap. 2, 
 
 4. Of Salvage by Chartered Ships ; Salvage Agreements ; Salvage 
 between Ships belonging to the same Owner, or engaged as 
 Consorts in the same Adventure ; Salvage by Persons employed 
 to render other than Salvage Service; Salvage of Ships 
 damaged by Collision ivith the Ships of those claiming from 
 them Salvage Remuneration ; Salvage by Licensed Pilots. 
 
 The charterer of a ship^ except under special contract mth the Where ship 
 owners, is not entitled to salvage for services rendered by her crew to chartered. 
 another vessel, though he may have a claim against the owner for 
 delay and loss incurred {k) . 
 
 Although seamen cannot recover salvage remuneration for services When seaman 
 which by their contract they are bound to perform, yet when salvage entitled to. 
 services are performed by one ship to aD other, and both ships belong 
 to the same owner, the crew of the ship Avhich has performed the 
 salvage service is entitled to salvage remuneration, provided such 
 service is rendered as a moral duty, and not by reason of any contract 
 with their owner (I). 
 
 Where two vessels sailed as consorts, under an agreement, usual in Where ships 
 the Greenland fishing service and in other voyages, to render mutual ^'^iilas con- 
 assistance, the court refused to entertain a claim of salvage for ser- 
 vices rendered by one to the other {m). But where an alleged cus- 
 tom, for vessels eng-asred in the fisheries to render assistance to each 
 other gratuitously, was set up as an answer to a claim for salvage 
 service, the vessels not having been engaged in a joint adventure, the 
 court, declining to decide on the legality of such a cus torn, pronounced 
 for the claim (??). 
 
 Where the crew of a vessel were much reduced by deaths or sick- 
 ness, another vessel, which had supplied the deficiency on the high 
 seas from among its own crew, and assisted to work her home, was 
 held entitled to salvage (o). So also, where a vessel having lost her 
 master by death, the mate of another vessel took his place (p) . 
 
 Where the master of a vessel in distress had contracted with the Agreement for 
 master of another vessel for assistance, for a sum certain, a claim for ^^^^^^^ ^^^* 
 salvage by the latter was rejected {q). Such an agreement, if not 
 
 (k) The Alfen, Swab. 189. If the ship f/aret, 2 Hagg. 48. The Waterloo, 2 Dods. 
 
 sails on the responsibility of the charterer 433. The Trelaivnei/, 4 Rob. 223. 
 it seems he is entitled to salvage. The (h) The Swan, 1 Wm. Rob. p. 68. In the 
 
 Scout, infra. The Waterloo, 2 Dods. Ad. case of the Harriet, 1 Wm. Rob. p. 439, the 
 
 433. The Nile, 44 L. .1. Ad. 38 ; L. R. 4 court directed an issue to the Court of 
 
 A. & E. 449. Common Pleas to try the question of the 
 
 (0 The owners of SappTio v. Benton, existence of such a custom, and, the verdict 
 
 40 L. J. Ad. 47. The Waterloo, 2 Dods. being in the aiBrmative, pronounced for the 
 
 433. The Maria Jane, 14 Jur. 857. The custom. 
 Scout, 41 L. J. Ad. 42; L. R. 3 A. & E. (o) The Hoe, Swab. 84. 
 
 512. The Glengahir, 41 L. .1. Ad. 84; {p) The Jff»e^ Mitchell, ib. 111. 
 
 L. R. 3 A. & E. 534. {q) The Mulgrave, 2 Hagg. 77. The 
 
 ()«) The Zepliijr, 2 Hagg. 43. The Mar- Betsey, 2 W. Rob. 167. The True Blue, ib. 
 
 2 N 2 ,
 
 548 
 
 SALVAGE. 
 
 Part VI. 
 
 "When pilots 
 eutitletl to. 
 
 exorbitant and dishonestly entered into by the master, or obtained 
 from bim l)y fraud (a) and compulsion, will be held binding by the 
 Court of Admiralty, except, perhaps, in cases of inevitable accident, 
 or occurrences of a nature so improbable that neither party can be 
 supposed to have foreseen or contemplated them at the time of 
 entering into the agreement {b). But if the salvage service becomes 
 necessary in the course of the performance of an agreement for towage, 
 or the towage ser^nce has ceased to be possible by reason of tempes- 
 tuous -weather, or unforeseen or extraordinary peril, and salvage 
 serA-iee be rendered by the towing vessel (c), the agreement will be 
 no ground for refusing {d) to the towers, a salvage reward — mere 
 towage service being confined to vessels which have received no 
 damage (e). 
 
 If it should appear that an agreement has been made for the 
 salvage of the ship irrespective of the cargo on board at the time, 
 all salvage remuneration will be refused (/ ) . But loose conversations 
 at the commencement of the service, and before its extent could be 
 known, will not be considered conclusive of the merits of the case, 
 or the amount of the award {g) . 
 
 So, although a claim for salvage by a person originally engaged 
 as a pilot will not be favored, or a contract for more than mere 
 pilotage service lightly extended; services of a salvage character 
 rendered to ships found by pilots going on board of them to be unsea- 
 worthy, will not be held compensated by mere pilotage remunera- 
 tion {li). It is a settled doctrine of the Court of Admiralty that no 
 pilot is bound to go on board a vessel in distress to render pilot 
 service, for mere pilotage reward (i) . 
 
 176. The Repulse, ib. 396. The Graces, 
 2 Wm. Rob. 294. The Henry, 15 Jur. 183. 
 The Samuel, ib. 407. The Minnehaha, 1 
 Lush. 335, S. C. Ward v. MeCorkill. 15 
 Moo. P. C. C. 133. Tlie master of the 
 vessel rendering assistaiicehas power in these 
 cases to bind his o^ti interest and that of his 
 employers, but his agreement will not bind 
 the crew unless they concur in it. Such a 
 bargain would be contrary to principle, as 
 tending to deprive salvors of their usual 
 motive to enterprise. The Britain, 1 W. 
 Eob. 40. The Sarah Jane, 2 W. Rob. 110. 
 The Louisa, 2 W. Rob. 22; and see the 
 17 & 18 Vict. c. 104, s. 182, which pro- 
 vides that every stipulation by which a 
 .seaman cousent.s to abandon any right 
 which he may have or obtain in the nature 
 of salvage shall be inoperative. 
 
 {a) The Theodore, Swab. 351. The Woo- 
 sunrj, 44 L. J. Ad. 45. The High Court of 
 Admiralty will not give full effect to an 
 asrrecment for life salvage when the amount 
 stipulated for is inequitable. Tlie M. 
 having struck on the Parkin Rock in the 
 Red Sea, her passengers, 550 in number. 
 Mere landed on the rock. They were after- 
 wards taken to Aden bv the T. An agree- 
 
 ment for £4,000 life salvage was set aside 
 and £1,800 was awarded. The Medina, 
 45 L. J. Ad. 81; see the Waverley, 40 
 L. J. Ad. 42. The Ganges, 38 L. J. Ad. 
 61; L. R. 2 A. & E. 370. The Pride of 
 Canada, 1 Mar. Law Cas. 406. 
 
 (h) The Relen and George, 2 W. Bob. 
 368. 
 
 (c) The Bdsey, 2 W. Rob. 172. True 
 Blue, 2 Wm. Rob. 179. 
 
 (d) The William, cited in the Befsei/, 
 2 Wm. Rob. 172. The Isabella, 2 Hagg. 
 428. The Princess Alice, 3 Wm. Rob. 138. 
 The London Merchant, 3 Hasg. 324. The 
 Beicard, 1 W. Rob. 174. The Galatea, 
 Swab. 349. The Saratoga, 1 Lush. 318. 
 The Albion, ibid. 282. The Minnehaha, 
 ibid. 335. 
 
 (e) The Bernard, 1 Wm. Rob. 174. 
 
 (/) Tlie Westminster, 1 Wm. Rob. p. 
 229. 
 
 {(]) The Salaeia, 2 Hagg. 262. 
 
 (h) The Jonge Andries, Swab. 226; S. C. 
 in P. C. JIalsey v. Albertuszen, 11 Moo. 
 P. C. C. 813. 
 
 (0 The Fredericl; 1 W. Rob. Rep. 16. 
 Tlie Elizabeth, 8 Jur. 365. The Joseph 
 Harvey, 1 Rob. 308. Tlie City of Edin-
 
 4. CY CHARTERED SHIPS, &C. 
 
 649 
 
 111 one case [k] Lord Stowell saicl^ ^^It may be in an extraordi- Chap. 2. 
 nary 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 into a port, under circumstances of extreme 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.'^ 
 
 A tug under contract to tow, is generally bound to obey the orders Wheu tug 
 of the pilot in charge of the ship towed (/) , and if in so doing or by ^ "^^'^^^^''j'^^J.'' 
 reason of extraordinary and unforeseen peril, the tug incurs risk, 
 and performs service not within the scope of its original engage- 
 ment, or sustains damage — its owners are entitled to salvage rcAvard 
 and to compensation for such damage (m) . But a tug will not be 
 entitled to salvage or compensation for damage if her difficulties 
 and those of the vessel in tow, are brought about by negligence or 
 want of reasonable skill on the part of the tug {n) . 
 
 [If a hired transport, under the care of a master appointed by the Transport in- 
 
 owner, be brought into difficulty in the execution of a service in jmed in execu- 
 
 which men-of-war and transports are associated, a man-of-war is tio" of service. 
 
 bound, if it be in his power, to extricate the transport, and can have 
 
 no claim in the nature of salvage for the performance of this duty (o). 
 
 So also, if part of the crew mutiny, and obtain a temporary posses- whure i-art 
 
 sioii of the ship, and another part afterwards attack and overpower] of trcw 
 
 nuituiv. 
 
 Rob. 
 
 Liisli. 318. Tlic 
 
 S. C. Ward V. 
 
 C.133. 
 
 Lush. 318. The 
 
 S. C. Ward v. 
 
 bio-ffli, 2 Ha<jg. 333. The Indunlri/, 3 
 llugg. 203. The Hehe, 2 W. Rob. 246. 
 The ^«r/e/-.s Knape, 48 L. J. Ad. 53. 
 
 {k) The Joseph Sarveif, 1 C. 
 306. 
 
 (0 The Saratoga, 1 
 Minnehaha, ibid. 335; 
 M'CorMll, loYloo.V.Q. 
 
 (in) The Saratoga, 1 
 Minnehaha , ibid. 335 ; 
 MCorkiU, 15 Moo. P. C. C. 133. " When," 
 stiid Lord KixGoDOWX, delivering the 
 judgment of the Judicial Coimnitteo of the 
 Privy Council, " a steam-boat engages to 
 tow a vessel for a certain remuneration from 
 one point to another, she does not ivarrant 
 that she will be able to do so, and will do 
 so under all circumstances and at all 
 hazards, but she does engage that she will 
 use her best endeavours for that purpose, 
 and will bring to the task competent skill, 
 and such a crew, tackle, and eipiipments as 
 are reasonably to be expected in a vessel of 
 her class. She may be prevented from ful- 
 filling her contract by a vis major, by acci- 
 dents which were not contemplated, and 
 which may render the fulfilment of her 
 contract impossible, and in such case, by 
 the general rule of law, she is relieved from 
 her obligations. But she does not become 
 relieved from her obligations because unfore- 
 
 seen difEcultles occur in the completion of 
 her task, because the performance of her 
 task is interrupted or cannot be completed 
 iu the mode M'liich was originally intended, 
 as by the breaking of the ship's hawser. 
 But if in the discharge of this task, by 
 sudden violence of wind or waves, or other 
 accidents, the ship in tow is placed in danger, 
 and the towing vessel incurs risks and per- 
 forms duties which were not within the 
 scope of her original engagement, she is 
 entitled to additional remuneration for addi- 
 tional services, if the ship be saved, and 
 may claim as a salvor instead of being re- 
 stricted to the sum stipulated to be paid ibr 
 mere towage. Whether this larger remune- 
 ration is to be considered an addition to or 
 iu substitution for the price of towage is of 
 little consequence practically. The measure 
 of the sum to be allowed as salvage would 
 of course be increased or diminished accord- 
 ing as the price of the towage was or was 
 not hicluded in it. In the cases on this 
 subject, the towage contract is generally 
 spoken of as "superseded by the right to 
 salvage." See the J. C. Potter, 40 L. J. 
 Ad. 9. 
 
 {n) The Robert Dixon, L. R. 5 P. & A. D. 
 54. 
 
 (o) The Belle, 1 Edw. 66. See also the 
 Francis and Eliza, 2 Dods. 115.
 
 560 
 
 SALVAGE — 
 
 Part. VI. [the mutineers^ and recover the ship, the latter canuot maintain a 
 suit for salvage, because their conduct, though meritorious, is only 
 the performance of a duty incumbent on them («)•] 
 Colliding The Court of Admiralty was at all times reluciant to permit a 
 
 vessels. claim for salvage to be engrafted on a claim for damage [b). And 
 
 see now the 36 & 37 Vict. c. 85, s. 16, which renders it the duty of 
 colliding vessels to assist each other, so far as can be done without 
 danger. 
 Mastei's duty. It seems that the master of a ship is acting W'ithin the scope of his 
 authority in rendering salvage services, and that therefore his owners 
 are responsible for his negligence in performing them (c) . 
 
 5. Of Salvage by the Crews of the Boyal Navy. 
 
 Upon this subject it is noAv provided, by the "j\I. S. Act, 1854,'' 
 that in case of salvage sernces rendered by any ship belonging to 
 H. M., no claim shall be allowed for any loss, damage, or risk thereby 
 caused to such ship, or to the stores, tackle, or furniture thereof, or 
 for the use of any stores or other articles belonging to H, M., sup- 
 plied in order to effect the salvage service, or for any other expense 
 or loss sustained by PI. M. by reason of such services [d) ; and that 
 no claims for such services, by the commander or crew of such ship, 
 shall be adjudicated upon without the consent of the xVdmiralty (e) . 
 They may claim for their personal services. 
 
 The Act contains various provisions respecting the ascertaining, 
 before consular officers or Vice-Admiralty Courts abroad, the amount 
 of security to be given to salvors (/), when salvage services have 
 been rendered by the commander or crew of H. jNI.^s ships, and for the 
 payment of the salvage to be allowed by the High Court of Admiralty 
 of England, or Vice- Admiralty Courts, or agreed upon by the master 
 and the salvors [g). 
 
 The bond to be given for this purpose is binding on the owners of 
 the ship, freight, and cargo, for the salvage adjudged to be payable in 
 respect of them (//) . 
 
 On execution of the bond by the master, and delivery thereof by 
 him to the salvor, the right of the salvor to detain or retain posses- 
 sion of the ship, cargo, or property ceases (e) . 
 
 (ff) Governor Baffles, Kiug, 2 Docls. 14. Rep. 172. Earl of Uglingtoa, Swab. 7. 
 
 (i) The Sappho, Swab. 212. As to services rendered to passengers, see 
 
 (f) The Thetis, 38 L. J. Ad. 42; L. R. the Alma, Lush. 378. 
 
 2 A. & E. 365. (/) As to meaning of salvor, sec sect. 2. 
 ((0 17 & IS Vict. c. 101, s. 484. Mart, (</) Sects. 486-190. 
 
 Ann, 1 Hai^g. 158. The Clifton, 3 Hagg. {h) Sect. 491. 
 
 117. cases before the Act. " (/) 17 & 18 A'ict. c. 104, s. 188. As to 
 
 (t) 17 & 18 Vict. e. 101, s. 485. The an agreement for abandoning the lieu for 
 
 Lustre, 3 Hagg. 154. The Eioell Grove, salvage, see sect. 497, post, 
 
 3 Hagg. 209. The Wilson, 1 "W. Eob.
 
 6. APPORTIONMENT OP. 551 
 
 Salvors who elect not to proceed under the Act shall have no power Chap. 2. 
 
 to detain the ship, &c., but may proceed for the enforcement of their 
 
 salvage claims as if the Act had not passed {k). 
 
 The Board of Trade as owners of a steam-tug and life-boat belong- 
 ing to Ramsgate harbour may sue for an award of salvage in respect 
 of services rendered by the steam-tug and life-boat (/) . 
 
 6. Of the Apportionment of Salvage Reivard among those engaged in 
 the Salvage Service. 
 
 Sect. 498 gives power to the court having admiralty jurisdiction 
 to apportion salvage. See the instructions issued by the Board of 
 Trade as to the apportionment of salvage, in the Appendix : as to 
 apportionment by a receiver when the amount is less than 200/., see 
 sect. 467. 
 
 The apportionment of salvage among the persons engaged in 
 the salvage service, and the nature and amount of service which 
 establish a title to share, often give rise to questions of considerable 
 difficulty. The general principle is, that all shall share in the reward 
 who have contributed to the safety of the property upon which it is 
 assessed {m). 
 
 The Baltimore, laden with a valuable cargo, in a voyage from 
 Liverpool to Baltimore, in America, and being reduced by tempes- 
 tuous weather to a state of helpless distress, by damage, and by the 
 illness and exhaustion of her crew, fell in with the Rapid, a post- 
 office packet. The captain of the packet having, at their earnest 
 solicitation, taken the American master and crew on board his ship, 
 inquired of his own officers and company whether they were inclined 
 to volunteer their services, and endeavour to save the vessel and 
 cargo. With the exception of one man, they all expressed their rea- 
 diness for the service ; and the mate and ten of the packet's crew were 
 sent on board the Baltimore, taking with them a supply of the neces- 
 sary articles for the use of that vessel, and succeeded in bringing her 
 in. The value of the property saved was 1,900/. In a suit for sal- 
 vage, an exclusive right was set up by the mate and his companions, 
 who went on board the Baltimore, and a claim of participation was 
 made by the captain and the remainder of the crew, and also by the 
 owners of the packet, in respect of stores supplied to the distressed 
 ship. The value of the property saved was about 1,900/. Lord 
 Stowell, after awarding 800/. for salvage, said, " The next question 
 
 (Jc) Sect. 110. otlicr set, whose services had been of benefit 
 
 \l) The Cijbele, 48 L. J. Ad. 13, 81; to the distressed ship. The Neptune, 1 
 
 L. R. 3 P. & A. D. 8. W. Kob. Rep. 297. The owuei of a f.aving 
 
 (vh) See the NeiHune, where it appeared, ship is not entitled to the share which is 
 
 that of two sets of salvors, one set did no- payable to his apprentice. The Cohimhine, 2 
 
 thing but mischief, and the court dismissed W. Eob. 186. 
 
 their claims, awarding remuneration to the
 
 552 SALVAGE — 
 
 Part VI. is, amougst whom, aud in what proportion, this sum sliallbe divided? 
 
 There can be no doubt whatever, that the claim of the captain of the 
 
 Rapid is Avell-founded, for he is the life and soul of the Avhole busi- 
 ness. His right to reward is indisputable ; and I shall give him the 
 . sum of 100/., to which I think he is justly entitled, as a sort of fiag- 
 e'lgJitli. With respect to the contest between those Avho went aboard 
 the Baltimore, and became the immediate instruments of preserving 
 her, and those who remained on board their own ship, I confess I 
 can see no sufficient ground for making a distinction between them, 
 and consider it but fair to hold that they are all c([ually entitled to 
 be rewarded. All of them, it is true, did not go on board the Bal- 
 thnore ; but they were all (with one exception) ready to do so, and a 
 selection of part of them became necessary. Which Avas accordingly 
 made — and, I have no doubt, properly made — by their commander. 
 As all of them concurred in their readiness to go, they are all equally 
 deserving of reward. It must be admitted that the mate is entitled 
 to a considerable reward for the services he pei'formed, and I shall 
 therefore give him 80/. The rest I shall distribute equally amongst 
 the crew of the packet, with the exception of the man who refused 
 his services; and his share, under the circumstances, ought to be 
 given to the carpenter, in addition to his own share. With respect to 
 the claim of the owners of the packet, they are certainly entitled to 
 receive the value of the sails and stores Avhich were supplied from 
 their vessel, and also the amount of any other loss or expense which 
 they may have fairly incurred^' {a) . 
 
 In a case before cited {b), it appeared that his ^Majesty's ship Thetis, 
 employed in bringing specie from South America, sailed from Rio de 
 Janeiro on the 4th of December, 1830, and Avas wrecked on the 5th 
 off Cape Frio, when she drifted into a cove surrounded by high rocks, 
 and sank, Avith treasure to the amount of about 810.000 dollars. 
 AVhcn the ncAVs of this disaster reached Rio, Admiral Baker, the 
 commanding officer of the British squadron on that station, pro- 
 ceeded to the spot, surveyed the localities, collected all the informa- 
 tion that could be obtained, and stationed a vessel, the Algerine, to 
 guard the Avreck. On his return to Rio, the possibility of reco- 
 vering any part of the property engaged Admiral Baker's attention. 
 The subject excited general interest at Rio, among the British officers 
 and others, and particularly in the mind of Captain Dickinson, avIio 
 formed plans and constructed models for that purpose. Captain 
 Dickinson submitted these plans and models to Admiral Baker, or he 
 Avas sent for and consulted by the admiral, and was eventually 
 appointed by the admiral to undertake the recoveiy of the stores and 
 specie. On the 24th of January, two months after the accident, and 
 one month after the purpose of recovering the stores and specie had 
 been entertained, and the means devised in communication Avith the 
 
 («) The Salthnore, 2 Dotl^^. 132. The (i) 3 Hagg. 14, ante, p. 542. 
 
 Charlotte, Wylic, 2 W. Hob. 495.
 
 6. APrOKTiONMENT OP. 55^ 
 
 admiral, Captain Dickinson sailed from Rio de Janeiro to effect that Chap. 2. 
 object. In the meantime, all the assistance that conld be afforded 
 by concerted measures had been supplied. Stores and men had been 
 furnished from other ships. Two vessels were put under Captain 
 Dickinson^s command. A net to inclose the cove, and a suspension . 
 cable, had been proposed by the admiral, and constructed from the 
 public stores ; and other things, to a small amount at least, had been 
 procured at the admiraPs cost. There was much dispute as to whom 
 the merit of particular contrivances and inventions used in the service 
 was due ; but it was clear, that the admiral had done every thing 
 that an active and intelligent commander could do to promote and 
 forward the enterprise, and that Captain Dickinson, by his ingenuity 
 and exertions, fully justified the choice which had been made of him 
 as the dux fad I, or person to whom the immediate command of the 
 enterprise was entrusted. 
 
 A large amount of treasure was recovered; and the question Avas 
 whether the admiral or Captain Dickinson was to be considered as 
 the principal salvor, and whether the former could be considered to 
 have rendered such effective assistance as would entitle him to claim 
 anything in the character of salvor. 
 
 " Salvage," said Sir John Nicoll, ^^in its simple character, is the 
 service which those who recover property from loss or danger at sea 
 render to the owners, with the responsibility of making restitution, 
 and with a lien for their reward. It is personal in its primary 
 character, at least, and those Avho are so employed in the service are 
 those whom the law considers as standing in the first degree of 
 relation to the property and to the proprietors. This is necessary for 
 the protection of the owner, who ought not to be burthened with 
 artificial claims, and it is the natural mode of tracing effects to their 
 efficient causes : for by whom can the service be said to be ostensibly 
 performed, but by those who recover the thing ; and on whom can 
 the duty of restoring it lie, but on those who actually regain the 
 possession? These are the principles by which the court proceeds in 
 compelling restitution, when necessary, or in assigning a reward. It 
 looks primarily to the actual salvor, and has uniformly rejected all 
 claims founded on prerogative rights, as of the Lord High Admiral 
 in former times, of lords of manors, of magistrates, and of flag-officers, 
 except with reference to assistance substantially and beneficially 
 afforded. Captain Dickinson stands indisputably in the character of 
 actual salvor, but his claim rests upon some averments that are not, in 
 my view of the case, agreeable to the facts. He says, he was entirely 
 dej)endent on his own skill and resources, and was in effect wholly 
 uncontrolled in the direction of the salvage service, and never received 
 from the admiral instructions in what manner the treasure was to be 
 recovered. So far as it is meant to represent his acts as entirely 
 independent of the admiral, I must say the log, and the journal, and 
 his own correspondence describe a service of a very different kind. 
 The history of his appointment and recalls, the demand for supplies 
 of naval stores, the compliance with those demands on the respousi-
 
 554 SALVAGE — 
 
 Part VI. bility of the admiral -vvlicn necessary, the constant communication, if 
 
 not submission, of all his plans and intentions for the admirals 
 
 approbation and sanction, and the entire want of means to effect the 
 service by his own resources alone, bespeak a case quite at variance 
 ■with this averment, and quite out of the ordinary class of independent 
 and individual service. 
 
 '^ It is alleged also on his behalf^ ' that there is no principle of con- 
 structive assistance in civil salvage, and that no admiral or com- 
 manding officer of a station, not being an actual salvor, but merely 
 by virtue of such command, has any right to claim to share in the 
 salvage earned by, and awarded to, a ship belonging to such station.' 
 There is no difficulty in acceding to this proposition, as expressed in 
 these terms. AYhat is earned by or awarded to a ship, will not be 
 disturbed by secret constructive claims ; but that will not exclude a 
 claim from being propounded on behalf of an admiral on special 
 grounds of extensive contribution of assistance : and in regard to the 
 description of the admiral's service in this case, as mere constructive 
 assistance, I think it went much beyond that, and what is proposed 
 as the test of that principle, the performance of mere official duties. 
 I shall not undertake to define precisely what that line is, nor shall 
 I enter into a scrupulous examination of what such an officer might 
 be required to do in other cases. The services which Admiral Baker 
 represents himself to have performed, beyond the disputed merit of 
 originating and directing the ser\dce, are, that he furnished men and 
 stores from the ships on his own responsibility, and procured some 
 things at his OAvn cost and credit. It is objected, however, that 
 Admiral Baker made no considerable advances till the adventure had 
 become productive; but it is admitted that he authorized Captain 
 Dickinson to procure some articles to the amount of 100/., and we 
 may infer from this admission what he was disposed to do if neces- 
 sary. It was material also, as indicating the general understanding 
 of the parties on this subject. The admiral also made insurances, 
 and kept up a correspondence with tlie underwriters in this country, 
 and with the Admiralty ; and it does not appear to me that he 
 obtained from either any funds or assurance of indemnity. The 
 letters from the Admiralty of the 19th of February, and lith of 
 August, 1831, have been exhibited; and they imply that Admiral 
 Baker was considered by the Admiralty as intimately connected with 
 the operations ; they refer him very much to his own judgment and 
 discretion as to what might be proper to be done, saving only, says 
 the latter despatch, ' that the public were not to be put to any expense 
 by the endeavours to save the treasure, beyond the use of the ships 
 and crew, when the service would admit of it.^ This letter alone, if 
 it were necessary to rely upon it, would, I think, he almost sufficient 
 to give a special character to this service. It invests it, as to the 
 salvors, with some degree of public authority, and imposes on the 
 admiral the responsibility of doing what was proper, with very little 
 assistance or direction either from the underwriters, representing the 
 owners, or the Government ; I think, that the responsibility was very 
 beneficially discharged. Had there been any intrusion on the rights
 
 6. APPORTIONMENT OP. 555 
 
 or interests of tlie owners in this act of the Government, it might Chap. 2. 
 haA'C been a good ground of objection on their part, and might have 
 affected the whole question; but the contrary was the fact. The 
 underwriters were in communication with the Admiralty, and appear 
 to have been privy to all that was done. If, then, admirals can be 
 entitled at all, for anything but mere personal presence and exertion, 
 it must be for such services as these, which were infinitely more 
 conducive to the success than the admiraFs own personal presence 
 could in this instance have been. The case of the Aquila, which has 
 been so much relied on, seems to admit that some services might 
 have entitled even a magistrate, though it is not said what they 
 should have been. It would be saying nothing to require personal 
 service ; since, then, such persons would not be distinguished from 
 any other. The exception supposed in that case is, in my judgment, 
 very applicable to the present, as authority for what I am disposed, 
 on the effect of general principle alone, to hold, and on these obser- 
 vations I shall pronounce that Admiral Baker is entitled to share as 
 having contributed effective assistance ; and deeming it expedient, in 
 a case of novelty, to act as far as I am able, on rules and principles 
 established in analogous cases, and thinking that the proportion 
 allowed in other civil cases Avill not be unfit to be applied to this, I 
 shall adopt the rule of the prize proclamation.^^ 
 
 This case was one of extraordinary service, requiring great 
 resources, much previous preparation and assistance, without which 
 the personal exertions of the actual salvors could have produced no 
 beneficial result. It must be considered rather as an exception 
 to the general rule — tliat those only who were actually occupied 
 in effecting a salvage service are entitled to share in a salvage 
 remuneration. 
 
 The ship Vine («), in distress near the Needles, Avas assisted for 
 three days and nights, and finally towed into Portsmouth by thirty 
 sailors, eight of Avhom were employed on the Coast-Guard Service, 
 under the command of Lieutenant Porter, R.N., who did not accom- 
 pany them. A separate claim of salvage being made for this officer, 
 it was alleged on his behalf, " that his men '' had proceeded, under 
 his directions, in the revenue galley to the assistance of the vessel, 
 that he gave them instructions, and also sent off a pilot boat to aid 
 their exertions. 
 
 Lord Stowell said, '' In this case what did Lieutenant Porter do ? 
 He permitted the men, under his command, to perform with the 
 boats a salvage service ; and on the ground of policy I think that 
 officers of the Preventive Service should suffer their boats to assist 
 vessels in distress ; but su.cli a permission may have its inconveniences, 
 and it may sometimes be a matter at least for consideration, how far 
 the men employed in protecting the revenue ought to be allowed 
 to quit the particular service for which they are engaged. The 
 
 (a) The Vine, 2 Hagg. 2. See the Nile, where an officer of a Queen's ship clii-ected 
 44 L. J. Ad. 38; L. R. 4 A. & E. 449, the salvage,
 
 55 G SALVAGE. 
 
 Part VI. nature and duties of tliis arduous service are a sufficient reason for 
 
 Lieutenant Porter not going out in person Avith assistance to this 
 
 A^essel : but to acknoAvlcdge him as a salvor would be to introduce a 
 sort of prize principle very inapplicable to cases of this description. 
 In cases of prizc^ a commander on shore^ if the capture takes place 
 ■within the limit of his station, is considered as the manager of the 
 whole transaction, and the property being condemned, he is entitled 
 to his proportion; but in questions of salvage the court must not 
 act upon the same liberality of principle that belongs to prize cases. 
 Here all is to be paid out of the pockets of the British owner ; he 
 alone is to pay all demands. The application, I repeat, is novel, and, 
 in dismissing it, I go as far as I can in allowing Lieutenant Porter 
 his expenses. "" 
 
 And voluntary agreements entered into between the officers and 
 crew of a Queen's ship, or of any other ship, and the master or other 
 person in charge of a ship, whereby the salvors agree to abandon their 
 lien upon the ship or other property salved, and to abide the decision 
 of a Court of Admiralty on their claims, taking security on that 
 behalf to such amount as may be agreed on, shall, as in the case of 
 bonds given to officers of H. M.'s ships, be binding on the ship, 
 freight, and cargo salved, and adjudicated upon and enforced in the 
 same manner («). 
 
 As to a stipvdation by a seaman to abandon any right he may have 
 in the nature of salvage being inoperative, see 17 & 18 Vict. c. 101, 
 s. 182, Appendix. 
 
 7. Of Salvage for Preservation of Life, 
 
 Formerly, if the preservation of life could be connected with the 
 preservation of property, whether by accident or not, the Court of 
 Admiralty took notice of it, but had no original power of remune- 
 rating for the mere preservation of life, which Avas left to private 
 bounty {h). 
 
 By 17 & 18 Met. c. 104, it is provided that there shall be payable 
 by the owners of any ship or boat, stranded or otherwise in distress 
 on the shore of any sea or tidal water within the limits of the U. K., 
 to those by Avhom the service of saving the lives of persons belonging 
 to such ship or boat, shall be rendered a reasonable amount for 
 salvage and expenses {c), that salvage in respect of the preservation of 
 the lives of any persons on board such ship or boat shall be payable 
 by its OAvners in priority to all other claims for salvage, and that if 
 the property be insufficient for this purpose, and for the payment of 
 the expenses incurred in the salvage service, the Board of Trade may 
 
 («) 17 & 18 Ylct. c. lOi, s. 497. 1 W. Rob. 331. The Ardiiicaple, 3 Hag 
 
 (i) The Aid, 1 Hagg. 156. The Zephyrus, 151. 
 
 (c) 17 & 18 Vict. c. 104, s. 458.
 
 8. BY WHOM PAYABLE. 557 
 
 in its discretion award out of tlie Mercantile Marine fund to the life Chap. 2. 
 salvors such sum as it deems fit, in whole or part satisfaction of the 
 amount of salvage left unpaid {d). Being now empowered to do so^ 
 the Court of Admiralty will always take this service into its special 
 consideration [e). 
 
 The salvation of life is the most important of all elements in 
 estimating the value o£ a salvage service. Dr. Lushington, on a 
 value of 4,132/. has awarded 1,180/. to the salvors of life, and 480/. 
 to the salvors of property (/). 
 
 '^Whatever," said the learned judge in another case [g) "may 
 have been the state of the law before, the court is now bound to take 
 into its special consideration the salvation of human life, and to give 
 a corresponding reward. An agreement between salvors and the 
 agent of the salving ship, to leave the amount of their remuneration 
 to his award, has been held inequitable, and not such as to absolve 
 the Court of Admiralty from the duty cast upon it by that Act [h) , 
 of apportioning an ascertained amount of salvage reward among those 
 who have taken part in the salvage service (i) ." 
 
 And by 25 & 26 Yict. c. 63, s. 59, the provisions concerning salvage 
 of life may with the consent of any foreign country be applied to its 
 ships on the high seas [k] . 
 
 8. By whom and in respect of ivhat Interest Salvage is payable. 
 
 With respect to the parties liable to pay salvage, and the interest 
 in respect of which it is payable, the rule is, that the property 
 actually benefited is alone chargeable with the salvage recovered. If 
 at the time of the salvage service the earning of the freight has 
 commenced, and it be afterwards actually earned, it is liable to pay 
 salvage as well as the ship and cargo (/). 
 
 A chartered ship at a monthly freight was captured and recaptured 
 on her homeward voyage. The owner and charterers having respec- 
 
 {d) Sect. 459. This Act was held not to {e) The Bartlei/, Swab. 198. The Coro- 
 
 authorize the Court of Admiralty to award manclel, ibid. 205. Salvors of life are 
 
 salvage for life ou the high seas at a distance entitled to salvage reward from the owners 
 
 of more than three miles from the shore of of cargo, subsequently rescued by the 
 
 the U. K. The Joannes, 1 Lush. 182. See owners of the cargo. The cargo ex Schiller, 
 
 'post, &c. But by 24 Viet. c. 10, s. 9, it is 46 L. J. Ad. 9. The Fusilier, 34 L. J. 
 
 now enacted that "All the provisions of Ad. 25, 
 
 'The M. S. Act, 1854,' in regard to salvage (/) The Eastern Ifonarch, 1 Lush. 81. 
 
 of life from any ship or boat within the The Thomas Fielden, 32 L. J., P. M. and 
 
 limits of the U. K., shall be extended to A. 61. 
 
 the salvage of life from any British ship or (//) The Bartleij, Swab. 180. The Coro- 
 boat, wheresoever the services may have mandel. Swab. 205. The Joannes, 1 Lush, 
 been rendered and from any foreign ship or 182. 
 boat, where the services have been rendered (Ii) Sect. 498. 
 either wholly or in part in British waters." (/) The Enchantress, 1 Lush. 93. 
 As to the power of the Board of Trade (X) The Willem III., L. R. 3 A. & E. 487. 
 to direct payments to be made for aflbrding (/) The Dorotht/, 6 Rob. 98. The Pro- 
 assistance for the preservation of life in (jress, Edw. 210. As to life salvage, see 
 cases of distress at sea, &c., see 17 & 18 sect. 459. 
 Vict. c. 120, s. 7.
 
 558 SALVAGE. 
 
 Part VI. tively laid claim to sliip and goods in the Admiralty Courts restitution 
 
 was decreed to them on payment of salvage^ which was paid by the 
 
 charterer from the sale of the goods. Part of the freight ha^dng been 
 paid, the proceeds of the goods fell short of the residue, and it was 
 held in an action by the shipowner to recover it, that he alone^ iu 
 respect of the freight, was liable to the whole salvage, and that the 
 charterer might set off the amount he had paid for salvage, against 
 the shipowner's demand for the freight unpaid (a). 
 
 '^ The principle,^'' said Lord Ellenborough, "upon which freight 
 is to contribute in the case of general average is, that it was one of 
 the things in hazard at the time when that sacrifice which produced 
 the general average was made, and the principle upon which it con- 
 tributes in the case of salvage is, that but for the recapture, for which 
 the salvage is paid, it would have been lost. Salvage is a compensa- 
 tion to the salvors, not merely for tlie restitution of the property 
 which has been saved by them to the prior owners (for that is pro- 
 perly an act of mere justice on their part), but for the risk and hazard 
 incurred by them, and for the beneficial service they have rendered 
 the former owners in rescuing that property from the danger in which 
 it was involved, and the persons to contribute to that salvage are the 
 persons who would have borne the loss had there been no such rescue, 
 and who, of course, reap the benefit of that rescue. To form a 
 judgment who Avould have borne the loss had there been no rescue, 
 and to whom the rescue was beneficial, we must look to the interest 
 which each party had. The plaintiff's had an interest in the hull of 
 the ship, as shipowners, to the extent of the value of the ship, and 
 they had also an interest iu the arrival of the ship at London to the 
 extent of the freight, which would have been clue to them in that 
 event, which was 16,145/. 13^. 7d., and the defendants were interested 
 in the goods to the amount of 14,351/. 18^. 2d.; but as the ship's 
 arrival would subject them to the payment of the 16,145/. 13s. 7d., 
 the loss by the capture would have been on the whole a beneficial 
 event to them, and they of coui'se derived no advantage, but on the 
 contrary received a prejudice by the event of the rescue. The salvage, 
 therefore, though computed upon ship and cargo, ought to be borne 
 wholly by ship and freight, which is to be received by the shipowners, 
 and the cargo ought to contribute nothing. It is very true that by 
 this means the freight is made to bear that salvage, which was paid 
 to the recaptors in respect of the cargo saved, and the shipowner 
 has a much higher salvage to pay than Avould have been the case 
 had the ship returned iu ballast ; but as it was in the contemplation 
 of all parties that the ship was to come home loaded, the shipowners, 
 have no right to complain of any consequence which results from 
 what was so contemplated ; and if the plaintiffs arc alone benefited 
 by the recapture, they must bear the whole amount of the salvage, 
 whatever that may be. They must, therefore, bear the whole of the 
 sum, 2,312/. Os. 6d. 
 
 In the Cleopatra Obelisk case {b) actions were brought on policies 
 
 (a) Cox V. Mai/, 4 M. & S. 152. (l) Dixon v. Whittoorih, 48 L. J. C. T. 538; 
 
 L. R. 4 C. P. D. 371.
 
 10. APPOINTMENT AND DUTIES OF EECEIVERS. 559 
 
 effected on the obelisk against the risk of total loss, and it was held Chap. 2. 
 
 that the defendants were liable to the plaintiffs for a sum of 2,000/. 
 
 paid as salvage ; for though the policies were against the risk of total 
 loss onlj'-, the obelisk was only saved from total loss by the services of 
 the salvors, and the defendants therefore having had the benefit of 
 their services, were bound to indemnify the plaintiff against his 
 liability in respect of them. 
 
 In Aitchison v. Lohre, 49 L. J. Q. B. &c., 123, it was held, in an 
 action on a policy of insurance on a ship, that salvage expenses could 
 not be recovered under a suing and labouring clause in the policy. 
 
 9. Proceedings in Admiralty. 
 
 [When a well-founded claim of salvage has been entered in the 
 Court of Admiralty, the proper course to be pursued by the defendants, 
 in order to save the expense of further proceedings, is to tender, in 
 the first stage of the cause, by acts of Court, and not personally and 
 verbally, to the claimants, a specific sum for the salvage, accompanied 
 by an offer to pay the costs incurred (c) . The Court wall then con- 
 sider of the sufficiency of the sum tendered, and if it shall be thought 
 sufficient, will make the party who refuses the offer, liable not only 
 to his own costs, but also to the costs of the other side, if it shall 
 appear that the proceedings have been vexatiously pursued {d).'\ And 
 where a suit had been commenced after a tender of salvage, which, 
 in the opinion of the Court, was amply sufficient, costs were given 
 against the party by whom the tender was refused (e) . 
 
 10. Appointment and Duties of Receivers, under 17 ^- 18 Vict. c. 104. 
 
 [In the case of valuable property, and numerous proprietors and 
 salvors, the jurisdiction and proceedings of this Court are admirably 
 adapted to the purposes of justice. But as the delay and expense 
 necessarily incident to the proceedings of a high tribunal, sitting at 
 a distance from the subject in contest, will often be injurious to the 
 parties, the Legislature has endeavoured to introduce a more expe- 
 ditious and less expensive mode of adjustment. For this purpose 
 several provisions], now repealed, [have been at different times made 
 by the Legislature,] 
 
 Now by 17 & 18 Vict. c. 104; which applies to all parts of England, 
 
 (c) See the Jlichnan, 39 L. J. Ad. 7; refer the question of costs to the considera- 
 
 L. II. 3 A. & E. 15; where per Sir E. J. tiou of the Court." See the Jacob Land- 
 
 PHiLLisroRE, " For the future I must direct strom, L. R. 4 P. & A. D. 191. 
 
 that when a tender is made it shall either (d) Tlie Vromo Margarefha, 4 Rob. 103. 
 
 state that it is a tender for salvage reward See the Eleanom Charloita, and the Jolm 
 
 and costs, or it shall specify the ground and Thomas, 1 Hagg. 156, 157. 
 
 upon which costs arc not tendered, and (f) The Bmu, l"w. Rob. Ren 15,
 
 560 SAT.VAGE. 
 
 Part VI. "Wales J and Ireland, (The Cinque Ports have been made the subject 
 of distinct enactments, which will be noticed afterwards). 
 
 It is enacted, that no admiral, vice-admiral, or other person exer- 
 cising Admiralty jurisdiction, or his agent, shall receive, take, or 
 interfere with any wreck, except as thereinafter mentioned (ft). 
 
 The Board of Trade is to have the general superintendence, 
 throughout the U. K., of all matters relating to wreck, and may, 
 with the consent of the Treasury, appoint any oflficer of the coast- 
 guard (6), customs, or inland revenue, or other person, to be a 
 receiver of wreck in any district (c) . 
 
 Whenever any vessel is stranded, or in distress on the sea shore, 
 or in any tidal water, the receiver is to proceed to the place and take 
 the command of all persons present, and issue such directions as he 
 may think fit ; and if any person wilfully disobeys such directions, 
 he forfeits a sum of 50/. ; but he is not authorized to interfere 
 between the crew and the master of any vessel, unless requested by 
 the latter {d). 
 
 For the preservation of the vessel and the persons or cargo on 
 board of her, he may summon to his assistance such number of men 
 as he thinks necessary, require the master of any other vessel at 
 hand to give him aid, and demand the use of any waggon, cart^ or 
 horses (e). 
 
 All cargo and other articles belonging to the vessel in distress, that 
 may be washed on shore, are to be delivered to him (/). 
 
 He is authorized to apprehend any person guilty of plundering, 
 disorder, or obstruction, and to use any force which may be necessary 
 for the suppression of such misconduct {(j) . 
 
 All persons may pass or repass over any adjoining lands, for the 
 purpose of rendering assistance, and of depositing on such lands any 
 cargo or other article recovered from the vessel in distress {h) . 
 
 Any damage thereby done is to be recoverable in the same manner 
 as salvage, and the owner or occupier of any land who impedes any 
 such person is liable to a penalty of 100/. (i) . 
 
 The receiver, or in his absence a justice of the peace, is to examine, 
 as soon as conveniently may be, on oath, any person belonging to any 
 vessel, or able to give any account of any vessel, its stores or cargo, 
 in distress on the coast, respecting her name, description, place from 
 and to Avhicli bound ; the name of her master and owners, of the 
 owners of her cargo, and the services rendered, and such other 
 matters as such receiver or justice may think fit {k). 
 
 (a) 17 & 18 Vict. c. 104, s. 440; aud see, excellent epitome of the principles and 
 
 for the meaning of the word "wi'eck," rnles hy which salvage services are estiuiatetl 
 
 sect. 52. iiiid salvage recompense awarded. 
 
 (jb) And see as to the remuneration of (d) 17 & 18 Vict. c. 104, s. 442. 
 
 officers or men of the coast-guard service (c) Sect. 442. 
 
 for watching or protecting shipwrecked (/) Sect. 443. 
 
 propertv, 18 & 19 Vict. c. 91, s. 20. (g) Sect. 444. 
 
 (c) 17 & 18 Vict. c. 104, s. 439. As to (7*) Sect. 44G. 
 
 Cinque Ports, see 17 & 18 Vict. c. 120, s. 11. (/) Sect. 447. 
 
 In the instructions to receivers of wreck aud (X) Sect. 448. As to the power of a 
 
 droits of Admiralty issued by the Board of wreck commissioner under this sect., sec 
 
 Trade (see Appendix), will be found an 39 & 40 Vict. c. 80, s. 31.
 
 11. IN THE UNITED KIXGUO^ir. 561 
 
 He is armed, for the purpose of this examination,, with all the powers Chap. 2. 
 
 given by the Act to inspectors appointed by the Board of Trade, to 
 
 which he is required to send one copy of such examination, and 
 another to the Committee for managing the affairs of Lloyd's (l). 
 
 Persons finding or taking possession of wreck, of which they are 
 the owners, shall, as soon as possible, under a penalty of 100/., give 
 notice thereof to the receiver ; if they are not the owners, and do not 
 deliver it to him, they shall, in addition to such penalty, forfeit all 
 claim to salvage, and pay to the owner claiming such wi'cck, or if it 
 be unclaimed, to the person entitled to it (to be recovered as a 
 penalty), double the value of it {m). 
 
 The receiver may, under the authority of a warrant from a justice 
 of the peace, enter into any place or vessel, to search for any wreck, 
 which he suspects to be secreted or improperly dealt with, and may 
 seize and detain it when found ; he must, within forty-eight hours 
 after taking possession of any wreck, cause a description thereof to be 
 posted up at the Custom-house of the nearest port ; and if the value 
 thereof exceeds 20/., transmit a similar description of it to the 
 secretary of Lloyd's, by whom it is to be posted up for inspection in 
 some conspicuous place {n) . 
 
 Notice of unclaimed wreck is also to be given by the receiver to any 
 lord of the manor entitled to such wreck (o). 
 
 Whenever any salvage question arises, he may, at the request of 
 the salvors or owners, appoint a valuer to value the property, and give 
 a copy of the valuation to both parties, and such copy, purporting to 
 be signed by the valuer and attested by the receiver, is to be received 
 in evidence in any subsequent proceedings ( j»j) . 
 
 The receiver is to be remunerated by fees, according to a scale to 
 be approved by the Board of Trade, and to have the same lien and 
 remedies for the recovery of his expenses and fees as salvors have in 
 respect of salvage due to them {q). 
 
 Such fees are to be carried to, and form part of, the Mercantile 
 Marine Fund (r) ; and any dispute as to the amount payable to a 
 receiver for expenses and fees, is to be decided finally bv the Board 
 of Trade (5). 
 
 As to a receiver's duty with respect to unclaimed wreck, and as to 
 his detaining wreck and selling for payment of salvage, see post, 
 pp. 564, 565. 
 
 IL Of Salvage in the United Kingdom — Jurisdiction of Justices, &^c. 
 
 Whenever any ship or boat is stranded, or in distress, on the shore Salvage 
 of any sea or tidal water within the limits of the U. K., i.e., on the '^^ ^' ^' 
 
 (0 Sects. 448 ; see as to " inspectors," (fi) 25 & 26 Vict. c. 63, s. 50. 
 
 sect. 15. See 39 & 40 Vict. c. 80, s. 31. (q) Sect. 455. See 17 & 18 Vict. c. 120, 
 
 (>«) Sect. 450. The Zeta, L. R. 4 A. & E. ss. 12 and 13. 
 
 460. (r) See sect. 417, as to the source of this 
 
 (») Sects. 451, 452. fund and its application. 
 
 (0) 17 & 18 Vict. c. 104, s. 454. (s) Sect. 456. 
 
 2 o
 
 562 SALVAGE. 
 
 Part VI, shore of tlie U. K., or -witliin three miles of it {a), and ser\dces are 
 
 rendered by any person in assisting sucli ship or boat^ in sa^ing the 
 
 lives of persons belonging to it, or its cargo and apparel, and when- 
 ever any wreck {b) is saved by any person other than a receiver, there 
 shall be payable by the owners of the property saved a reasonable 
 amount of salvage. 
 
 Salvage for the preservation of the lives of any persons belonging 
 to such ship or boat is to be payable by the owners of it, in priority 
 to all other claims for salvage ; and if the property be insufficient for 
 this purpose, after payment of expenses, so much of the deficiency as 
 the Board of Trade shall think fit is to be paid by it to the salvors 
 out of the ^lercautile Marine Fund (c) . 
 
 These provisions as respects salvage of life are extended by the 
 24 Vict. c. 10, s. 9, to the salvage of life from any British ship or 
 boat, wheresoever the services may have been rendered ; and fi'om any 
 foreign ship or boat where the services have been rendered, either 
 wholly or in part, in British waters {d). 
 
 Sect. 460 of the M. S. Act, 1854, and other subsequent sections 
 .Turisdiction of in the 8th part of this Act, enacted that disputes as to salvage claims 
 Justices, &c. |-Qj, salvage service rendered within the U. K., out of the boundaries 
 of the Cinque Ports, where the amount claimed did not exceed 200/., 
 might be determined in a certain manner by justices, and by consent 
 justices might determine such claims where sum claimed exceeded 
 that amount. 
 
 By the 25 & 26 Vict. c. 63 (the M. S. Act Amendment Act, 
 1862), s. 49, the provisions contained in the 8th part of the M. S. 
 Act, 1854, for giving summary jurisdiction to two justices in salvage 
 cases, and for preventing unnecessary appeals and litigation in such 
 cases, shall be amended as follows (that is to say) : — Such provision 
 shall extend to all cases in which the value of the property saved 
 does not exceed 1,000/., as well as to the cases pro^-ided for by the 
 principal Act. Such provisions shall be held to apply, whether the 
 salvage service has been rendered within the limits of the United 
 Kingdom or not. This section also points out how the justices are 
 to be appointed, and enacts that a stipendiary magistrate, county 
 court judge, &c., may exercise the jurisdiction in salvage cases given 
 to two justices. 
 
 The justices to whom such dispute is referred may determine it 
 themselves, or call to their assistance any person conA^ersant with 
 maritime affairs, or appoint such person as umpire to decide the 
 disputed point ; — they or he may call for documents, and administer 
 oaths, and direct in what maimer and in what shares and proportions 
 the remuneration (not exceeding 5/.) to such umpire, and the costs of 
 
 (a) The Leda, Swab. 40. (c) Sect. 459. 
 
 Ip) Sect. 458. Timber adrift through (cl) See a/ite, p. 557- See further as to 
 
 accidental loosening of fastenings has been provisions concerning salvage of life apply- 
 
 held not to be wreck within this section. ing to foreign sliips, 25 & 26 Vict. c. 63, 
 
 Palmer v. Bouse, 3 H. & N. 503, 27 L. J. s. 59. 
 Ex. 437.
 
 11. IN" THE UNITED KINGDOM. 
 
 563 
 
 the arlDitration shall be paid by the parties to the dispute^ subject to Chap. 2. 
 an appeal^ if the sum in dispute exceeds 50/., to the siiperior courts 
 before-mentioned (e) . 
 
 If the claim for salvage sernces exceeds 1,000/., and the parties 
 do not consent to the justices, &c., having jurisdiction, the dispute 
 is to be decided by the High Court of Admiralty in England and 
 Ireland, and in Scotland by the Court of Session, subject to the 
 proviso that if the claimant should not recover more than 200/. he 
 shall have no costs of suit unless the court shall certify that the case 
 is a lit one to be tried in a superior court (/) ; and the certificate 
 will not be granted except in circumstances of difficulty and pecu- 
 liarity [g). Perhaps since the 25 & 26 Vict. c. 63, s. 49, ante, p. 562, 
 this proviso would apply where the claimant does not recover more 
 than 1,000/. Under the Judicature Acts the court in such a case 
 might make an order depriving the claimant of costs (see O. 55 in 
 Judicature Act, 1875). 
 
 The Act does not in express terms authorize the justices to appor- Apportion- 
 tion the amount of salvage awarded bv them among the salvors. It ^"f"* °^ 
 has been held that the whole sum awarded having been paid without 
 apportionment to the owner of a ship, he was not liable in an action 
 
 {e) 17 & 18 Vict. c. 104, ss. 461, 464. lu 
 such appeals it is open to the parties to ad- 
 duce further evidence, if necessary, to eluci- 
 date the truth of the case. And this may be 
 done without special application to the court 
 by act on petition and affidavits. But this 
 step will be taken at the peril of costs, if 
 such further evidence shall ultimately 
 appear to the Court of Admiralty to have 
 been introduced without sufficient cause. 
 The Thomas Wood, 1 W. Rob. Rep. p. 18. 
 In cases of appeal from the award of magis- 
 trates aud commissioners appointed under 
 these Acts to allot salvage on the spot, the 
 Court of Admiralty is reluctant to disturb 
 the decision, unless it appear inconsistent 
 with the established principles by which its 
 own practice is regulated. (The Testa, 2 
 Hagg. Ad. Rep. ^^189. The Brothers, 2 
 Hagg. Ad. Rep. 195.) But in one case (the 
 Oscar, 2 Hagg. Ad. Rep. 257), Su- Cheisto- 
 PHEE Robinson reversed the award of 
 magistrates in a case of salvage, and made 
 the following observations : — " The 1 & 2 
 Geo. 4, c. 75 (the Act then in force), was 
 intended to provide for the reduction of 
 expenses, and to prevent delay in small 
 cases ; and although under the geueral 
 words of the 8th clause, it may be com- 
 petent to the magistrates to proceed in 
 cases of gi'eater magnitude, it is manifest 
 that the primary object of the Act was to 
 provide for small and occasional services 
 only, such as those specified in the Act; 
 and the magistrates cannot proceed in cases 
 of a higher description with the same pros- 
 
 2 
 
 pect of benefit or advantage to the parties. 
 In large cases, the interest will be likely to 
 • induce one party or the other to be dissatisfied 
 with the award, and to appeal to the High 
 Court of Admiralty ; thei-e must then be the 
 expense of two proceedings, which, as in 
 this instance, will amount to nearly as much 
 as the salvage. The owners must ordi- 
 narily, and except in cases of positive mis- 
 conduct, defray these expenses, and it would, 
 therefore, be an improvement of the Act, if 
 they had the power of removing the case to 
 the Court of Admiralty in the first instance. 
 The magistrates may judge with advantage 
 of local circumstances, and of the value of 
 the loss or damage occasioned to the salvors 
 in consequence of their exertion ; but they 
 are inadequate judges of the principles that 
 ought to govern cases of value with refer- 
 ence to rules of general policy, or the con- 
 sistent application of analogies drawn from 
 other cases, which is so desirable to be 
 observed; and, more particularly, they must 
 be very ill qualified to apply a rate of pro- 
 portion, as they have done in this and in a 
 former case, by giving integral proportions 
 of the value. The rates of simple propor- 
 tion graduate at large intervals; while the 
 estimate of services, labour, and enterprise, 
 requii'es to be made as minutely as possible 
 under an iufinite variety of particulars, and 
 may, therefore, be better done by the allow- 
 ance of precise sums." 
 
 (/) 17 & 18 Vict. c. 104, s. 460. 
 
 Iff) The Fenlx, Swab. 13. The John, 
 Lush. 11. 
 
 o 2
 
 564 
 
 SALVAGE. 
 
 Part VI. against him by a seaman for his share {a), and that a master to whom 
 the Avliolc salvage had been paid^ and who retained what he botid fide 
 considered to be his share, was entitled so to do ; that his conduct in 
 so doing was no answer to his claim against the owners for wages, and 
 that the owner's remedy was to apply to the court, under sect. 498 
 of the M. S. Act, 1854, for a distribution of salvage (b). 
 
 If, when the aggregate amount of salvage not exceeding 200/. has 
 been finally ascertained by agreement or by the award of such justices 
 or umpire, a dispute arises as to its apportionment, the person liable 
 to pay the salvage may relieve himself and his property fi'om all fur- 
 ther charge or liability, by paying the amount to the receiver of the 
 district, who (if he thinks fit to receive it) is to make a final and con- 
 clusive distribution of it among the persons entitled (c) . 
 
 "When the aggregate amount o£ salvage for salvage services rendered 
 in the U. K. has been finally ascertained, and exceeds 200/., and what- 
 ever be its amount for salvage services performed elsewhere, and any 
 delay or dispute arises as to its apportionment, any Court of Admiralty 
 jurisdiction may order its apportionment in such manner as may 
 seem just, appoint a person to carry it into effect, and compel any 
 person, under Avhose control such amount is, to bring it into court, 
 to be there dealt with as the court may direct {d) . 
 T\reck. Unclaimed wreck, whether jetsam, flotsam, lagan, or derelict found 
 
 in or on the shores of the sea or any tidal water is, in the event of no 
 one establishing his ownership of it before the expiration of a year 
 fi'om the time of its coming into the receiver's possession, to be deli- 
 vered by him to the vice-admiral, lord of the manor, or other person 
 entitled to it (e). 
 
 A variety of provisions are also contained in this Act of Parliament 
 as to offences in respect of wreck (/) ; as to remedies against the 
 hundred in England, and the county in Ireland and Scotland, in 
 case of plunder or destruction of wrecked vessels, or property by 
 tumultuous assemblages, and for regulating the traffic in anchors, 
 cables, sails, old junk, old iron, &c., by dealers in marine stores (g) . 
 Detaining Wliercvcr any salvage is due, the receiver is to detain the property 
 
 wreck for or wrcck saved (if the latter be not sold as unclaimed), until payment 
 of the salvage, or process issued by some competent court for its 
 detention {/i). 
 
 He may release the property on security given to his satisfaction for 
 its payment if the claim for salvage does not exceed 200/. If such 
 claim does exceed 200/., the superior courts above mentioned (see 
 sect. 460, ante, p. 562) may determine the amount of the security ; and 
 
 («) Atkinson v. Woodhall, 1 H. & C. (e) Sects. 471, 475, and the interpreta- 
 
 170. tion clause, sect. 2. As to delivery of wreck 
 
 (b) The Princess Selena, 1 Lnsh. 190. by receiver not prejudicins: title, see 25 & 26 
 
 (c) Sects. 466, 467. See tlie instrnctions Vict. c. 63, s. 52. As to Crown's right to 
 issued by the Board of Trade as to the prin- wi-eck, see sect. 53 of same statute, 
 ciples of apportionment, Appendix. (/) Sects. 477, 479 ; and see 24 & 25 A''ict. 
 
 (d) 17 & 18 Vict. c. 104, s. 498. As to c. 96, ss. 64—66. 
 
 the principle of apportionment, see (tnte, {g) Sects. 477, 484. 
 
 p. 551. (/O 17 & 18 Vict. c. 104, s. 468. 
 
 salvasre.
 
 12. IN THE JUraSDICTION OF THE CINQUE PORTS. 565 
 
 whenever tlie bond or other security given to the receiver is for an Chap. 2. 
 amount exceeding 200/.^ the salvors or owners of the property salved 
 msij proceed in those courts for the adjudication of the questions 
 between them, and the enforcement of the bond or other security {i) . 
 
 If the salvor voluntarily offers to abandon his lien upon the property 
 salved; upon the master or other person in charge thereof entering 
 into a written agreement to abide the decision of a Court of 
 Admiralty, and thereby giving security to such amount as may be 
 agreed on by the parties to such agreement, it shall bind the ship, 
 cargo, and freight, and be adjudicated upon and enforced in the same 
 manner as bonds provided in the case of detention for salvage services 
 rendered by H. M/s ships {k). 
 
 The receivers may sell the property detained, the parties liable to Selling for 
 pay being aware of its d etentiou, for payment of salvage and expenses, salvage. 
 paying the surplus to the parties entitled, when the amount of salvage 
 is not disputed and payment not made within twenty days — when 
 payment is not made within twenty days after the decision of a 
 tribunal from which there is no appeal, and when payment is not 
 made within twenty days after decision of the first tribunal, and no 
 monition or other proceeding for its review issues during that time 
 from a Court of Appeal (/). Svibject to the payment of expenses, 
 fees, and salvage, the owner of wreck satisfying the receiver of his 
 claim, is entitled, within one year after such wreck has come into the 
 receiver's possession, to have the same delivered up to him (m) . 
 
 12. Of Salvage within the Jurisdiction of the Cinque Ports. 
 
 By the same statute, which has not deprived the Court of Admi- 
 ralty of its concurrent jurisdiction within the boundaries of the 
 Cinque Ports {n), it is enacted, that disputes with respect to salvage 
 within those boundaries shall be determined (o) in the manner in 
 which the same have hitherto been determined ; and as the provi- 
 sions of 1 & 2 Geo. 4, c. 7Q, by which the provisions of several pre- 
 vious Acts relating to that jurisdiction were consolidated and amended, 
 have not been repealed — it will be necessary to advert also to the 
 enactments of that statute. 
 
 The lord-warden, or the deputy-warden and lieutenant of Dover 
 Castle for the time, is to appoint three or more substantial persons in 
 each of the Cinque Ports, two ancient towns and their members, to 
 adjust and determine any difference relative to the salvage, which may 
 arise between the master of any vessel and the person or persons 
 bringing cables and anchors ashore ; and in case any vessel shall be 
 
 (t) Ibid. Jeune Paid, 36 L. J. Ad. 11 j 4 L. R. Ad. 
 
 (k) Sect. 498. 336. The Antilope, 4 L. R. Ad. 33. As 
 
 (?) Sect. 469. to the boundaries, see 1 & 2 Geo. 4, c. 76, 
 
 (»i) Sect. 470. s. 18. 
 
 (») The Maria Louisa, Swab. 67. The (t?) 17 & 18 Vict. c. 104, S3.460, 476.
 
 566 
 
 SALVAGE. 
 
 Part VI. either forced or cut from her cables and anchors by extremity of 
 
 Aveather, or by any other accident whatever^ and leave the same in 
 
 any roadstead or other place Avithin the jurisdiction, and the salvage 
 cannot be adjusted between the persons concerned, then the same shall 
 be determined by any three or more of the said persons so to be 
 appointed as aforesaid, Avithin the space of twenty -four hours after 
 snch difference shall be referred to them for their determination (a). 
 
 [The commissioners are authorized to decide on all claims made by 
 any person -vA'hatsoever for services of any sort or description rendered 
 to any vessel, as well for carrying out anchors, cables, or stores, fi'om 
 any place within the jurisdiction, as for conducting vessels from the 
 Downs, and other bays and roadsteads on the coast of Kent, Sussex, 
 and Essex, and from the island of Thanet, or from the sea, or any 
 place, to Ramsgate, Dover, or any other place within the jurisdiction, 
 or for the saving or preserving -within the jurisdiction any goods or 
 merchandises, wrecked, stranded, or cast away from any vessel, the 
 master or owners thereof, or their agent, being present at the place 
 where the commissioners are sitting ; and this whether the ship shall 
 have been in distress or not [b). But no commissioner can act for 
 any other port or place than that in which, or within a mile whereof 
 he is resident (c). And either party may within eight days after the 
 award declare his desire of obtaining the judgment of some competent 
 Court of Admiralty with respect to the salvage or compensation, in 
 which case the party must forthwith declare whether he Avill proceed 
 in the Admiralty of England, or in the Admiralty of the Cinque 
 Ports, and must proceed within twenty days from the date of the 
 award ; and the commissioners are lo permit the ship and cargo to 
 depart on their voyage, or deliver the goods to their owners, taking 
 bad in double the amount of the sum awarded [d). An appeal so 
 made is to be final (e) . 
 
 I have been thus particular in arranging and detailing the pro- 
 visions of these statutes, from a hope that a better knowledge of them 
 may induce the masters of ships in distress to avail themselves of 
 them ; and not submit to the very heavy charges too frequently 
 made for assistance on such occasions (/), or incur the expense of 
 litigation in the com-ts of law.] 
 
 (fl) 1 & 2 Geo. 4, c. 76, s. 1. See 9 Geo. 4, 
 c. 37, s. 1. 
 
 (i) 1 & 2 Geo. 4, c. 76, s. 2. As to giving 
 notice of meeting to salvors, sec the Elhe, 
 Swab. 436. 
 
 (c) Sect. 3. 
 
 \d) [1 & 2 Geo. 4, c. 76, s. 4.] 
 
 (e) Sect. 5. As to making a tender on 
 an appeal, seethQ Annette, 42 L. J. Ad. 13; 
 L. E. 4 A. & E. 9. 
 
 (/) [The French Ordinance, so often 
 quoted, contains an apparently excellent set 
 of regulations on this subject, liv. 4, tit. 9, 
 Des Savf rages. All vessels, &c., dri\'en on 
 shore, whether belonging to subjects or 
 foreigners, arc taken into the King's pos- 
 
 session; the officers of the Admiralty arc 
 the persons appointed to preserve and take 
 charge of them, and pay the persoas who 
 assist in the salvage, and who are to act 
 under their awards. But there seems to be 
 no proper mode of settling the charges of 
 the officers themselves, no citstos custodum ; 
 and this defect has probably occasioned the 
 complaints which the commentator informs 
 us have often been made against their con- 
 duct in many places. A year and a day is 
 the pci-iod allowed for reclaiming property, 
 after which it is to be sold for the benefit 
 of the Crown. But claims have, in fact, 
 licen allo\>ed after that period, as Yaliu 
 informs us.]
 
 13. ON EEOAPTURE. 567 
 
 Chap. 2. 
 
 13. Of Salvage on Recapture, 
 
 [I proceed in the next place to the consideration of salvage pay- 
 able upon recapture. 
 
 I have in a former chapter [y) spoken of the subject of capture, 
 and of the alteration of property thereby occasioned. With a view to 
 the subject more immediately under consideration at present, it may 
 be taken as a general proposition, liable only to one exception, which 
 will be noticed hereafter, that the ships or goods of the subjects of 
 this country taken at sea by an enemy, and afterwards retaken at any 
 indefinite period of time, and Avhether before or after sentence of 
 condemnation, are to be restored to their original proprietors upon 
 payment of salvage to the recaptors. This, however, is the result of 
 the peculiar enactments of the Legislature of this country ; it is a 
 new and peculiar law made by this country for itself, in favour of 
 merchant property recaptured, introducing a policy not originally 
 adopted by other countries, and differing from its own more ancient 
 practice. By the ancient rule of law, where a ship was taken and 
 carried infra prccsidia, and especially after a sentence of condemna- 
 tion, the ship became the property of the captor ; and if retaken, the 
 former owner had no jus postliminii ; and this continued to be the 
 general laAv of Europe down to a very late period {h) . 
 
 With regard to the beneficial interest in the goods of an enemy 
 taken at sea, it was anciently established that in the case of capture 
 by ships in the pay of the King, the King should have one-fourth, 
 the OAvners of the ships another fourth ; and the other moiety be 
 divided among the captors ; the admiral taking, if present, the share 
 of two men in each vessel; if absent, of one only; and that in the case 
 of capture by private ships not in the King^s pay, the King should 
 claim no part, but the captors take the whole, allowing, however, to 
 the admiral as much as the share of two men {i) . But these pro- 
 portions Avere occasionally varied at the King^s pleasure; and Sir 
 Matthew Hale informs us that in his time the admiral had the third 
 of goods taken by private men-of-war as his fee, but in the right of 
 the King (^) . The entire beneficial interest Avas first given to the 
 captors, Avhether belonging to the royal naA'y, or private ships of war, 
 by a statute passed in the reign of Queen Anne (/) . This statute,] 
 
 {g) Ante, Part 1, Chap. 1, sect. 3, p. 16. Admiral," aud direct the same to be laid 
 
 {h) [By Sir \Vm. Scott, in the case of out in medals, as a reward for eminent 
 
 L'Actif, 1 Edw. 135.] services. Scobell's Acts, A.D. 1648, c. 12, 
 
 (i) [Black Book of the Admiralty (a), 19, and 1649, c. 21. The distribution of prizes 
 
 20; Clerk's Praxis, p. 163.] is settled by those Ordinances, aud by the 
 
 (k) [Hale's Treatise, in three parts, part 3, Ordinances of 1650, c. 28 & 33.] 
 
 chap. 28; in Hargrave's Law Tracts, p. 247. (l) [Anne, c. 13. .See Dr. Robinson's note 
 
 Two of the Ordinances passed in the time in the case of the Der Mohr, 4 Eob. Ad. 
 
 of the usurpation mention " the tenth of Rep. 315.] 
 prizes customarily due to the Lord High
 
 568 SALVAGE. 
 
 Part VI. [however, contains no regulation of salvage or other provision in the 
 case of recapture. During the short war with Spain in the reign of 
 George the First, no legislative provision was made on the subject of 
 prize.] Soon after the declaration of war against Spain in the 13th 
 year of the reign of C4corge the Second, and against Fi'ance in the 
 17th and 29th years of the same reign. Acts of Parliament, Avhich 
 are now repealed («), were passed on the subject of recapture, and 
 provisions as to recapture were made by several ordinances in the 
 time of the usurpation (b). At the commencement of hostilities 
 with America (c), and afterwards with the French king {d), there 
 was legislation about this. And at the commencement of the war, 
 in the year 1793, the legislature fixed the rate of salvage in case of 
 recapture (e) ; and afterwards, in the reign of George the Third, 
 there was further legislation as to this (/). These statutes are 
 now repealed, but it is thought advisable to refer to some of the 
 cases decided upon them. A store-ship in the King^s service, claim- 
 ing salvage in the Court of Admiralty, was entitled to the same rate, 
 and no higher, than a ship of war (g) . 
 
 A convoying ship might be entitled to salvage, for the recapture 
 of a vessel under its protection taken in that situation, and effectually 
 possessed by the enemy (A). 
 
 If a ship captured by the enemy was voluntarily abandoned by him 
 at sea after taking out the crew, either because he might be unable, 
 or might not think it worth while to carry her into port, and was 
 found and taken possession of by a British ship of war, this was held 
 not to be a recajjture within the Act of Parliament then in force, 
 and the Court of Admiralty was not restricted as to the rate 
 of salvage, but might apportion it to the nature and merits of the 
 case (i). 
 
 [A ship may be in the legal and constructive possession of the 
 enemy, though not at the moment in his actual possession ; and this 
 will be sufficient to found a claim for salvage under the Act of Par- 
 liament. This was held in the case of a Portuguese ship, which being 
 on a voyage from Pernambuco to Liverpool, with a cargo belonging 
 to British and Portuguese merchants, put into the port of jNIuros, in 
 Spain, in consequence of having sustained damage at sea, and was iu 
 that port at the time when the French took possession of the place. 
 The French withdrew to proceed on another expedition ; but they 
 were near at hand, and had it in their power to return whenever they 
 might think proper, and Avere not unlikely to do so. The principal] 
 
 («) 13 Geo. 2, c. 4, Recapture, sect. 18 ; (/) 43 Geo. 3, c. 160, ss. 39, 41 j 43 
 
 17 Geo. 2, c. 34, Recaptiu-e, sect. 20; 29 Geo. 3, c. 72, 3. 7; and 48 Geo. 8, c. 132. 
 
 Geo. 2, c. 34, Recapture, sect. 24. These acts are now repealed. 
 
 (b) Scobell's Acts, A.d. 1648, c. 12; 1649, (^) The Sedulous, 1 Dods. 253. 
 c. 21; and 1650, c. 28 & 33. (h) The Wight, 5 Rob. 251. 
 
 (c) 16 Geo. 3, c. 5, s. 24. (i) [The Gage, 6 Roh. 273 ; The Lamb- 
 Id) 19 Geo. 3, c. 67, s. 44 ; now re- ion, id. 275, note ; and the Lord Nelson, 
 
 pealed. Edvv. 79.] 
 
 (e) 33 Geo. 3, c. QQ, ss. 42, 44 ; now re 
 pealed. 
 
 I 
 
 I 
 I
 
 13. ON KECAPTUEE. 569 
 
 [persons of the place "were in tlieir interest, and it was not probable Chap. 2. 
 
 they -would Avillingly have suffered such a ship and cargo destined for 
 
 England to come away without molestation. In this state of things, 
 the ship was brought out of the port by the boats of a British frigate, 
 when there Avere only four persons on board. The cause being in the 
 Prize Court of Admiralty, the learned judge made a decree for the 
 rate of salvage under the statute ; observing, there was no doubt that 
 the property had been rescued from considerable peril by the captain 
 of the frigate, and that he was entitled to a remuneration of some 
 kind or other, — so that the only question was, whether this should be 
 considered as a case of military salvage, or the parties be put to the 
 expense of a fresh suit in the Instance Court (k) . 
 
 A British army acting in a foreign country, in conjunction with a 
 native force, without the co-operation of a fleet, and liberating a part 
 of the country from the hands of their common enemy, by operations 
 on land, directed to that end near to and in the place, may be entitled 
 to salvage under the statute, on British ships found in the port, and 
 on their cargoes, whether actually on board at the time or landed and 
 warehoused, thus rescued from the enemy ; but not on the property 
 of the natives of the country thus delivered, and which reverts to 
 their possession and dominion. And if, in such a case, the masters of 
 the British ships are allowed to bring their cargoes to England, under 
 their own management, according to their original intention, the 
 salvage is to be estimated upon the value in England (/) .] 
 
 The right to participate in the salvage in the case of alleged joint . 
 capture, depends so much upon the circumstances of the particular 
 case, the character of the vessels on behalf of whicli the claim is pre- 
 ferred, and the nature of the assistance on which it is founded, that 
 no general principle of practical utility can be extracted from the 
 decisions (m). 
 
 [It may be proper to mention in this place the practice of the Court 
 of Admiralty in the case of the property of the allies of this country, 
 taken at sea by a common enemy, and retaken by the subjects of 
 this country. " The Maritime Law of England," says Sir "Wm. 
 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 jus- 
 tice"' («) . In conformity to this rule, the Scm Jago was not restored to 
 the King of Spain, because retaken from his then enemy the French,] 
 
 {k) [The Peasamento Feliz, 1 Edw. 115.] {m) The BeUona, 1 Edw. Ad. Eep. 63. 
 
 The Edward and 3Iari/, 3 Eol). 305. The Wanstead, ib. 268. Le Niemeii, 1 
 
 ( [The Frof/ress^ 1 Edw. 210. The Dod. Ad. Rep. 16. La Belle Coquette, 
 
 case arose out of the recapture of Oporto, id. 20. Unions id. 346. The Sparkler, 
 
 The reader will find much instruction from id. 359. 
 
 the perusal of the very learned judgment (») [In the case of the fianta Cruz, 1 Kob. 
 
 delivered in the cause.] .Sec the Banda Ad. Rep. 63.] 
 and Kirwee Booti/, L. E. 1 A. & E. 109 ; 
 L. E. 4 A. & E. 436.
 
 570 
 
 SALVAGE. 
 
 Part VI. [under circumstances in Mhicli the Spanish courts had condemned 
 British property retaken by the Spaniards ; and shortly afterwards, 
 two Portuguese ships were for the same reason condemned, and several 
 others at the same time restored («) , because, in the interval between 
 the different captures, an ordinance of the Court of Portugal had 
 altered the rule of restitution in that country; and they were restored 
 upon payment of the rate of salvage established in Portugal : viz., 
 one-e'ujhth to king^s ships, and one-fifth to privateers. Upon the 
 same principle, a British ship, which had been taken by the French, 
 and carried into Pontevedra in Spain, and condemned by the Prize 
 Court at Paris, being afterwards seized as French property, and sold 
 under the orders of the Junta of Gallicia, then enemies of France, 
 and allies of this country, and w^hich came to England, and was 
 claimed by the original British owner, was not restored [b). At a 
 later j)eriod, a Spanish ship was restored on payment of one-eighth, 
 upon the ground of an article in a recent treaty between Spain and 
 this country, providing for mutual restitution on salvage (c). Of this 
 principle of British jurisprudence, whatever attempts may be made to 
 shake it from motives of public policy or private interest, reason 
 must now declare, and posterity will hereafter confess, that it is 
 founded on the immoveable basis of reciprocal justice. The right of 
 recaptors to salvage is extinguished by a subsequent act of capture 
 and condemnation by an enemy, but it must be a regular sentence of 
 condemnation carried into execution ; for if the sentence of the Prize 
 Court be overruled by an order of release from the sovereign power 
 of the State, the recaptors arc not dejirivcd of their right to 
 salvage (</). 
 
 If the property of a nation, not engaged in hostility with the 
 enemies of this country, happen to be taken as a prize by them, and 
 retaken out of their hands by H. M.^s subjects, the probability of its 
 condemnation in the courts of the country of the captors is to be 
 considered : and unless there appear to be ground on which it may 
 be supposed that it would have been condemned in those courts, it is 
 to be restored 2f?7Ao?;/ the payment of any salvage. Upon this ground 
 an American ship, carrying provisions and naval stores on the part 
 of the American government, for the use of their fleet in the INIedi- 
 terranean, was restored without any salvage on recapture from the 
 Spaniards (e). 
 
 In one of the wars with France, the conduct of the cruizers and 
 Prize Courts of France having given reason to apprehend that neutral 
 property, arrested by the former on the high seas, would in almost 
 all cases be condemned by the latter, salvage was usually allowed to 
 recaptors of neutral property out of the hands of the French by our 
 Court of Admu'alty, and such allowance was not thought unreason-] 
 
 (a) Same case. (e) [The Hivab-ess, 6 Eob. 104.] The 
 
 \h) [The Tlctoria, 1 Edvc. 97.] War, 2 Kob. 299. The Sansom, 6 Bob. 410. 
 
 (c) [The San Francisco, 1 Edw. 279. The Sobert Sail, 1 Edw. 265. 
 
 (rf) The Charlotte Caroline, 1 Dods. Ad. 
 Eep. 192.]
 
 13. ON RECAPTUEE. 571 
 
 [able by the neutral mercliants; but this was treated as au exception Chap. 2. 
 to the general rule^ founded on particular circumstances (/) . And in 
 one war it Avas allowed^ upon the recapture of American ships from 
 the French and Danes^ which were navigated without the certificates 
 of origin required by the French decrees,, and of which the condem- 
 nation was to be expected from the visual practice of France and 
 Denmark on similar occasions {y) .] 
 
 Shortly before the commencement of the late war with Russia a 
 proclamation was issued by H. M. for regulating the distribution of 
 prize and naval pay; and the Prize Act^ Eussia^ 1854, 17 Vict. c. 18, 
 and the Naval Pay and Prize Act, 1854, 17 Vict. c. l9, were passed. 
 These acts have been repealed. 
 
 By 27 & 28 Vict. c. 25 (The Naval Prize Act, 1864), s. 40, Xaval Pri^e 
 " Where any ship or goods belonging to any of Her Majesty's sub- Act, 1864. 
 jects, after being taken as prize by the enemy, is or are retaken from 
 the enemy by any of Her jNIajesty^s ships of war, the same shall be 
 restored by decree of a Prize Court to the owner, on his paying as a 
 prize salvage one-eighth part of the value of the prize to be decreed 
 and ascertained by the court, or such sum not exceeding one-eighth 
 part of the estimated value of the prize as may be agreed on between 
 the owner and the recaptors, and approved by order of the court : 
 Provided, that where the recapture is made under circumstances of 
 special difficulty or danger, the Prize Court may, if it thinks fit, 
 award to the recaptors as prize salvage a larger part than one-eighth 
 part, but not exceeding in any case one-fourth part, of the value of 
 the prize : Provided also, that where a ship after being so taken is 
 set forth or used by any of H. M.^s enemies as a ship of Avar (A), this 
 provision for restitution shall not apply, and the ship shall be adjudi- 
 cated on as in other cases of prize." 
 
 By sect. 41, "Where a ship belonging to any of Her Majesty^s 
 subjects, after being taken as prize by the enemy, is retaken from the 
 enemy by any of H. M.^s ships of war, she may, with the consent of 
 the recaptors, prosecute her voyage, and it shall not be necessary for 
 the recaptors to proceed to adjudication till her return to a port of 
 the U. K. The master or owner, or his agent, may, with the consent 
 of the recaptors, unload and dispose of the goods on board the ship 
 before adjudication. In case the ship does not, within six months, 
 
 (/■) [The Carlotta, 5 Rob. 54. The Eleo- statute it was held that a ship once set 
 nora Catharina, 4 Koh. 156. The Fann;/, 1 forth and employed as a privateer or vessel 
 Dods. 443. This last was the case of neutral of war was not to be restored upon recap- 
 goods shipped in an armed British vessel, ture, although at the time of the recapture 
 which was taken and retaken.] it was employed purely as a merchant ship, 
 {g) [The ActcBon, Mason, 1 Edw. 254.] carrying a cargo, without any commission 
 (/<) Upon the ipiestion what constituted of \\'ar, or any arms except a few muskets 
 under a repealed statute a " setting forth for self-defence. L'Actif, 1 Edw. 185. 
 as a vessel of M'ar," see the Ceylon, But the mere act of putting men on board 
 1 Dods. 105 — 119. The Georglna, 1 a captured ship, which was armed at the 
 Dod. 397. The Horaiio, 6 Rob. 320. time, and employing her as a cruiser, with- 
 The Isostra Signora del Mosario, 3 Rob. out a commission of war, did not bring the 
 10. The Santa Brigada, 3 Rob. 56. ship within the exception, nor defeat the 
 The Progress, 1 Edw. 210 — 222. And see right of the original owner. The Horatio, 
 Story on Prize Courts. Upon a repealed 6 Rob. Rep. 320.
 
 572 SALVAGE. 
 
 Part VI. return to a port of tlie U. K., the recaptors may nevertlielcss institute 
 proceedings against the ship or goods in the High Court of Admi- 
 ralty, and the court may thereupon award prize salvage as aforesaid 
 to the recaptors,, and may enforce payment thereof, either by warrant 
 of arrest against the ship or goods, or by monition and attachment 
 against the owner.^' 
 
 11. Of Salva(/e of Ships and Merchandise found in Possessio7i of 
 
 Pirates. 
 
 By the 13 & 14 Vict. c. 26, ''An Act to repeal an Act of the 
 G Geo. 4, for encouraging the capture or destruction of piratical 
 Sliips or Vessels, and to make other Provisions in lieu thereof,^^ juris- 
 diction is given to the High Court of Admiralty, and to all Vice- 
 Admiralty Courts of Her ^Majesty beyond the seas, to take cognizance 
 of and determine whether any persons who may have been attacked 
 as pirates by vessels of war belonging to H. ^I. Avere or were not 
 pirates, and to adjudge what was the total nnmber of pirates so 
 attacked, the number captured, and what were the vessels and boats 
 engaged : and by sect. 5 of this Act, it is enacted '' that all ships, 
 vessels, boats, goods, merchandise, specie, or other property taken 
 possession of from pirates by any of Her Majesty^s ships or vessels 
 of war, or hired armed vessels [or the ships or vessels of war of the 
 East India Company] («) or their boats, or any of the ofiicers and 
 crews thereof, shall and may be proceeded against in any of the 
 Admiralty Courts before mentioned, and be subject and liable to 
 condemnation as droits and perquisites of Her Majesty in Her ofl&ce 
 of Admiralty : Provided always, that if any part of the said property 
 shall be duly proved to have belonged to and to have been taken 
 from any of H. ]M.^s subjects, or from the subjects of any foreign 
 power, then such property and every part thereof shall, by the decree 
 of the said court, be adjudged to be restored, and shall be accordingly 
 restored to the former owner or owners, proprietor or proprietors 
 thereof respectively, he or they paying for or in lieu of salvage a sum 
 of money eqnal to one-eighth part of the true value, which money 
 [if such property shall have been taken by any of H. M.^s ships or 
 vessels of war or hired armed ships, or their boats] [a), shall be paid 
 to and divided and distributed amongst the ofiicers and crews thereof, 
 in such manner, form, and proportion, as other bounties are now 
 distributable by vii*tue of H. jNI.^s proclamation or order in council 
 dated the 30th day of July, 1849, or as H. jNI., her heirs and succes- 
 sors, shall from time to time by any further proclamation or order or 
 o]'ders in council think fit to declare and direct.'^ 
 
 Acts of piracy constitute men pirates — an independent state may 
 be giiilty of piratical acts, as may also rebels and insurgents against 
 the government of their own country {b) . 
 
 (a) The iiai-ts within brackets arc re- (i) The Magellan Firaies, 1 E. & M. 88. 
 
 pealed by Stat. Law I\cv. Act, 1875.
 
 OP COLLISION. 
 
 CHAPTER III. 
 
 OF COLLISION. 
 
 Sect. 1. Of the Civil and Maritime Laws respecting Collision, p. 573. 
 
 2. Law and Practice of the Court of Admiralti/. Causes of Collision, p. 575. 
 
 3. Enactments and Regulations as to Lights, Sfc, p. 581. 
 
 4. Law of England as Administered in Common Law Courts — Miscellaneous 
 
 Cases, p. 591. 
 
 1. Of the Civil and Maritime Laivs respecting Collision. 
 
 The master is responsible to his owners for the exercise o£ reason- 
 able skill and care in the management of the vessel, and he and they 
 are responsible in like manner to every one who is affected by his acts 
 within the scope of his employment (c) . The property of the 
 merchant is entrusted to the master's care, and he and his owners 
 must answer for its damage or loss, through his negligence or mis- 
 conduct. Mindful of these responsibilities, he must, during the 
 whole course of the voyage, at sea, at anchor, and in port, even when 
 a licensed pilot is on board (f/), be vigilant to avoid the peril of col- 
 lision with another vessel. 
 
 (c) A wanton trespass by the master is 
 not an act within the scope of his employ- 
 ment, and his owners are not answerable for 
 it. See The Lruid, 1 W. Rob. 402; i?. v. 
 Cunningham, 28 L. J. M. C. 66. It has 
 been held at Xisi Prins, that ownership is 
 prima facie evidence (liable of course to be 
 rebutted) that a vessel doing damage was 
 under the cave and management of tlie 
 owner's servants. — Joyce v. Capel, 8 C. & P. 
 370. 
 
 {d) The Girolamo, an Austrian vessel, 
 left the London Docks, with a licensed 
 pilot on board, towed by a steam vessel. 
 After she had passed Blackwall, a fog came 
 on, during which she ran foul of the Ed- 
 ward, a British convict vessel moored be- 
 low Woolwich, in the proper berth for such 
 vessels. 
 
 Sir John Nicholl said, " Did the acci- 
 dent arise from the neglect, default, incom- 
 petency, or incapacity (6 Geo. 4, c. 125, 
 ss. 53, 54, the enactments then in force) 
 of the pilot ? or was the master in pari 
 delicto 1 It occurred from the vessel going 
 on in the fog, not from an act of bad steer- 
 age, want of knowledge of shoals, or any 
 
 incapacity as pilot, but from proceeding at 
 all. It seems to be nearly admitted, that if 
 the vessel had set off in this fog, blame 
 would have been imputable to the master ; 
 if so, was he not blameable in going on in 
 the fog ? Had he not a right to resume 
 his authority ? Did he not owe it to his 
 owners, and to the other persons whose 
 property might be damaged by a collision, 
 to insist on bringing the vessel up ? Was 
 not the master in duty bound at least to 
 remonstrate with the pilot, and to represent 
 the danger of proceeding ? Yet he says in 
 his affidavit, ' he did not in the least inter- 
 fere.' In this aspect the case is, as far as 
 I am aware, new, and one of too much diffi- 
 culty to arrive at any hasty decision upon, 
 unless there be no other points upon which 
 the case may be disposed of." — 3 Hasg. 
 Ad. Rep. 176. See The Protector, 1 W. 
 Rob. Rep. 45 ; The Diana, 1 W. Rob. Rep. 
 131 ; The Massachusetts, 1 Wm. Rob. 371 ; 
 The Ripon, 6 Notes of Cases, 245 ; Stuart 
 V. Isemonger, 1 Wm. Rob. 131, P. C. ; The 
 Lochliho, 3 W. Rob. 321 ; The BuJce of 
 Manchester, 10 Jur. 863; TlxaArgo, Swab. 
 462, ante, p. 160.
 
 674 OF COLLISION. 
 
 Part VI. This misfortune may be occasioned by circumstances beyond his 
 
 control, as by the A'iolence of the wind and the sea ; it may be 
 
 accidental, Avitliout fault on either side ; it may be caused by the 
 negligence, ignorance, or unskilfulness of one or both of the captains 
 whose vessels come into collision. 
 
 By the law of most of the maritime states (a) , differing in this 
 particular from the Roman law, which leaA'es each party to bear his 
 OAvn loss, the cost of damage resulting from collision, without fault 
 in the persons belonging to either ship, is to be divided equally 
 between them. The same rule obtains when both vessels are to 
 blame, and when the blame cannot be detected. 
 
 An article of the ordinance of "Wisbuy [b) seems to favour the 
 interpretation of this rule of equal division, in the sense of a pro 
 rata apportionment of the expense of repairs between the colliding 
 vessels, according to their relative value ; and the Hanseatic ordi- 
 nance provides, that the damage be sustained " ceqiiis sortibiis jiixta 
 arbitrhim virorum bonorum" (<?). Yalin, adverting to the doubt thus 
 created, and citing the laws of Oleron, Kuricke on the Hanseatic 
 ordinance, Yinnius, and Stypmann as his authorities, states the 
 better opinion to be, that the damage should be borne in equal 
 portions — that is, each paying half {d). This, also, is the provision of 
 the French ordinance, in its terms {e), and according to Valines con- 
 struction of them. We read on the other hand inEmerigon (/), that 
 *^ if the collision has not happened fortuitously, and it is impossible 
 to learn to whose fault it is imputable, then each vessel shall bear a 
 moiety of the damage,''^ thus confining the rule to cases of inscrutable 
 fault. By the Code de Commerce (//), it is expressly limited to 
 doubtful cases, the loss occasioned by collision purely fortuitous being 
 allowed to rest where it has happened to fall. "If it be proved," 
 says Pardessus, " that both vessels are to blame, each party bears 
 his own loss ; but if it be impossible to say whose fault has occa- 
 sioned the collision, an estimate is made of the injury done to both 
 the colliding vessels, the amount of which is to be borne by them in 
 equal moieties, and not proportionably to the value of each ship and 
 cargo" (/«). 
 
 (rt) But soe Bell's Commentaries on rule is followed in the Danish, Swedish, 
 the Law of Scotland, vol. 1, p. 582, and Prussian, Lubeck, and Hamburgh laws. By 
 Cours de Droit Commercial Maritime, by the Norwegian code, when one vessel, with- 
 Boulay Paty, tit. De I'Abordage, vol. 4, out necessity, strikes against another, it is 
 p. 492. Both these learned authors ap- liable to fines, which vary in amount accord- 
 pear to think, that in cases of pure acci- iug to the nature and locality of the injury 
 dent, the rule of the maritime law and of done to the suffering vessel. See Pardessus, 
 the civil law is the same. Collection de Lois Maritimes. 
 
 (6) The 67th. (^0 Valiu, liv. 3, tit. 7, Des Avarles. 
 
 (c) Jus. Marit. Hanseat. tit. 10, art. 1, {e) Arts. 10, 11, Des Avarics. 
 
 on which Kuricke ad. Diet. tit. p. 220 (/) Traite des Assiu-ances, c. 12, s. 4. 
 
 (Edition Heineccii, p. 801), observes, "JVfji^e {g) Art. 407. 
 
 eiiim dum hi casu hoc, pro media parte (?i) Cours de Droit Commercial, de 
 
 qidsque contribuere ienehir uUum inde I'Abordage, pi. 652. Boulay Paty, vol. 4, 
 
 commodum remltare ijotest." The same p. 495.
 
 2, I/AW, &C., OF COURT OF ADMIRALTY, 575 
 
 Chap. 3. 
 
 2, Law and Practice of the Court of Admiralty. Causes of 
 
 Collision. 
 
 Our Court of Admiralty ii) , before which misfortunes of this kind 
 are frequently the subject of discussion^ adopts, when both vessels 
 are in fault, the rule of the Maritime Law ; and accordingly, in the 
 case of the Woodrop {k), Lord Stowell lays it down, that there 
 are four possibilities under which collision may occur. " In the first 
 place, it may happen without blame being imputable to either party, 
 as where the loss is occasioned by a storm or any other vis major. 
 In that case the misfortune must be borne by the party on whom it 
 happens to light; the other not being responsible to him in any 
 degree. Secondly, where both parties are to blame, there having 
 been want of due diligence or of skill on both sides ; in such a case, 
 the rule of law is, that tlie loss must be apportioned between them, as 
 having been occasioned by the fault of both of them (/). Thirdly, by 
 the misconduct of the suffering partj'^ only ; and then the rule is, 
 that the sufferer must bear his own burthen. Lastly, it may have 
 been the fault of the ship which ran the other down, and in this case 
 the innocent party would be entitled to an entire compensation from 
 the other.^' 
 
 Lord Denman, in the case of De Vaux v. Salvador {m), adverting 
 to the occasional hardship of this principle of apportionment, says, 
 "it grows out of an arbitrary provision in the law of nations from 
 
 (J) See ante, p. 3, note (p). Rotterd. s. 255 ; Beuecke, p. 222. Valiii 
 
 (Jc) 2 Dods. 83. See the Shannon, 1 W. discusses the various opiuions upon this 
 
 Rob. 463 ; The Ebenezer, 2 W. Rob. 206 ; subject, and conckides that the grounds of 
 
 The Itinerant, 2 W. Rob. 236; The expediency, on which the rule of apportion - 
 
 Thornleij, 7 Jur. 659 ; The Imniaganda, ing the damage done by collidino- vessels 
 
 8 M. R. pi. 75. An inevitable accident is to each other is founded, does not apply to 
 
 one M'hich could not possibly be prevented their cargoes; and, that unless blame be 
 
 by the exercise of ordinary care, caution, or established against one of them, the loss 
 
 maritime skill. See the judgment of on cargo must rest where it happens to 
 
 Dr. LusHiNGTON in The Virgil, 2 W. Rob. fall. Art. 10, tom. 3, tit. 7. In France, 
 
 205; The Pladda, 46 L. J. Ad. 61; L. R. the owner of merchandise lost or damaged 
 
 4 P. & A. D. 34. by collision cannot recover Mithout proof 
 
 (Z) ffaije V. Le yeve, 2 Shaw's Scotch that the master of one of the vessels was in 
 
 Appeal Cases, p. 395. It appears from fault; in the absence of such proof, the 
 
 this decision, that the previous value of the rule applicable to other cases of accidental 
 
 cargo damaged or lost by the collision of damage prevails — the sufferer bears his 
 
 two vessels, is, when both are in fault, to own loss. Pardessus, Cotcrs de Dr. Com. 
 
 be included in the estimate on which the p. 3, tit. 2, c. 2. Rogron Code de Com- 
 
 apportionment is made. The laws of merce, art. 407. 
 
 foreign countries differ materially upon (w) 4Adol. & Ellis, 420. Emerigon, also, 
 
 this subject. By the Hamburgh ordinance, in his commentary upon this construction of 
 
 the damage, in all cases of accidental col- the article of the French Ordinance, says, 
 
 lision, is to be apportioned on both vessels, " De Id il pent tres fort arriver qui rentier 
 
 their freights and cargoes, as in other valeiir d'un des navires soit ahsorhee par la 
 
 general averages, each vessel bearing one- demi du dommage, tandis que I'autre navire 
 
 half. Tit. 8, art. 1. The Swedish and leaucoup X'lus important supportera cirec 
 
 Rotterdam ordinances prescribe the same, aisance la demi restante." — Traite des 
 
 if the vessels running foul of each other Assurances, chap. 12, sec. 12. 
 were both under sail. Swed. tit, 8, ss, 1,8;
 
 576 OP COLLISION. 
 
 Part VI. views of general expediency^ not as dictated by natural justice, nor 
 
 possibly quite consistent with it.'"' Chancellor Kent (a) also, in his 
 
 Commentaries, speaks, after Cleirac {b), of the rule, as judicium rus- 
 ticornm. The rule, as we have seen, was established and maintained 
 against one, possibly more equitable in its theory, but practically more 
 difficult of just application, on grounds of policy. Collision in the 
 open sea is comparatively rare, and often accidental, but in roads and 
 in confined navigations it is a misfortune of frequent and seldom of 
 blameless occurrence. '^ No better means,^^ says Valin, adopting the 
 reasoning of the Jiigemens d'Oleron [c), " oi 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 damage constantly before their eyes. And if it be said that it 
 would be a shorter and more simple mode of adjustment to let 
 each party bear the loss he has sustained, as arising from casus 
 fortuitus, the answer is, that then the masters of large vessels would 
 make light of collision with those of smaller burthen. Upon 
 the whole, therefore, no rule is so just as that of equal par- 
 tition'' [d). 
 
 If the master or owner of one of the colliding vessels be unwilling 
 to bear his own loss, and wish to fix it upon the other, he may seek 
 his remedy in the Court of Admiralty or in a common law division of 
 the High Court of Justice (e) . In both, if he can prove that the 
 master of the defendant's vessel was alone in fault, and that no want 
 of ordinary skill or caution on his own part contributed to the mis- 
 fortune, he will, subject to the provisions of the statutes which limit 
 the liability of shipowners, and the apportionment of the amount 
 recoverable from them among the persons by whom damage has been 
 sustained, be entitled to recover a full compensation (/). 
 
 That compensation will consist of the amount of all the ship's 
 
 (rt) Page 223; Edinburgh edition. « la voye d'ummeilleiire si avant qu'elle en- 
 
 ib) Les jiirisconsultes nomment et quali- dommage ou ptiisse grecer autre nef. 3Iais 
 
 fient cette decision par moitie, judicium qiiand elle scait hicn qu'elle y doit parter 
 
 rusticorum. EUe se pratique ordinairement Jusques a la moitie cUe se retirera rolontiers 
 
 2}ar les arhitres, arbitrateurs et amialles hors de la voi/c. — Jugemens d'Oleron. 
 compositeurs lors et qiiand Vinterieur des (d) In Holland, the rule is followed, 
 
 parties, oule motif de la question n'est pas a "propter honum publicum et culpee^ pro- 
 
 decouvert et connu, ou bien quand il if a de bandcB difficultatem." — Neostadii, Decis. 
 
 la coidpe de part et d' autre. Telfut lejuge- 49. This rule now prevails in all the divi- 
 
 onent reconnu tout juridic da sage Eog Sa- sions of the High Coiu't of Justice. See 
 
 lomon qu'il donna sur la question d'entre J. A. 1873, s. 25, po*^ p. 591. 
 deux meres, ], 3, Seg. c. 5. — Cleirac, Us (e) As to proceeding in the Court of 
 
 et Coutumes de la Mer, p. 56. Eouen edit. Admiralty after verdict in a common law 
 
 1671. division, see Nelson v. Couch, 15 C. B., 
 
 (e) Le dommage du coup doit etre prise (x.s.) 99. The Anne and Mary, 2 Wni. 
 
 et party moitie par moitie des deux iicfs et Rob. 190. And see Gen. Steam Nav. Co. 
 
 les fins qui sont dedans, et parter aussi Ic v. Guillon, 11 M. & W, 877, as to the effect 
 
 dommage entre les marchandises ; d Icmaitrc of a decision by a foreign court. 
 delanefquiachoqueetfrapperautre est (/) See ante, p. 341. In the Court of 
 
 temi a jurer sur les SS. Evangilcs, lug et Admiralty, cargo laden ou board a vessel at 
 
 ses marinicrs qu'ils nc cJioquc'rent p)oint de the time of a collision is in no case liable to 
 
 lewr gre et volonte. Et la raison pourquoy be sued for damage. The Victor, 1 Lush. 
 
 ce jugement fut fait. JPremieremcnt est 72. The Leo, Lush. 444. 
 nu'une vieille nef ne se mettepoint volontiers
 
 2» LAW OF COURT OF AD:\riEALTY. 
 
 577 
 
 damage^ and loss from sliip's detcntiou, wliioli may havo resulted to Chap. 3. 
 liim from the collision^ but not of any damage subsequent to tlie 
 collision^ wliicli would not liave happened but for the lack of ordinary 
 nautical skill and seamanlike resolution on the part of his servant, 
 the master [g). 
 
 In a cause of collision in the Court of Admiralty, the ship, to the Ai-rest of ship 
 mismanagement of which the misfortune is imputed, may be arrested, and procedure 
 It is no bar to the maintenance of the action in that court, that char- 
 terers at the time of the collision had the entire control of the ship, 
 and that the collision was caused by their default, negligence, or mis- 
 conduct (A) . Before the Judicature Acts preliminary acts or state- 
 ments of the circumstances of the coWhion 7'ecenti facto were required 
 of the parties, to prevent one of them from stating his case to meet 
 the case of the other (i) . • 
 
 Witnesses are now summoned and examined viva voce before the 
 court ; though in certain cases facts may be proved by affidavits or 
 depositions {k), the judge determining upon all the facts of the case, 
 the complainant^s right to amends, and the principle of their compu- 
 tation (/). In this he is usually assisted by two of the masters or 
 elder brethren of the Trinity House, who, having heard the e\idence 
 
 {g) The Countess of Durham, 9 I^iw 
 Magazine, 279. The Fensher, Swab. 1. 
 The Linda, ibid. 306. 
 
 (/;) The Ticondcroga, Swab. 215. As to 
 bringing an action in rem after bringing an 
 action for the same cause in }}ersonmn, 
 see Hanner v. Bell, 7 Moore, P. C. 28f5. 
 The John and Mary, Swabey, 471. The 
 Bengal, ibid. 168; and see the Orient, post , 
 p. 579. 
 
 (0 The Vortigern, Swab. 518. 
 
 By 0. 19, r. 30 (Jud. Act, 1875), " In 
 actions for damage by collision between 
 vessels, unless the court or a judge shall 
 otherwise order, each solicitor shall, before 
 any pleading is delivered, file with the 
 proper officer a diDcument to bo called a 
 preliminary act, which shall Ije sealed up 
 and shall not be opened until ordered by the 
 court or a judge, and which shall contain a 
 statement of the following particulars : — 
 
 (rt.) The names of the vessels which came 
 into collision and the names of 
 their masters. 
 
 (J.) The time of the collision. 
 
 (c.) The place of the collision. 
 
 (d) The direction of the wind. 
 
 \e.) The state of the weather. 
 
 (/.) The state and force of the tide. 
 
 \g.) The course and speed of the vessel 
 when the other was first seen. 
 
 (A.) The lights, if any, carried by her. 
 
 \i.) The distance and bearing of the 
 other vessel when first seen. 
 
 (k.) The lights, if any, of the other 
 vessel which were first seen. 
 
 2 
 
 (I). Whether any lights of the other 
 vessel, other than those first seen, 
 came into view before the colli- 
 sion. 
 (m.) What measures were taken, and 
 
 when, to avoid the collision. 
 («.) The parts of each vessel which first 
 
 came into contact. 
 If both solicitors consent, the court or a 
 judge may order the preliminary acts to be 
 opened and the evidence to be taken thereon 
 without its Ijeing necessary to deliver any 
 pleadings." Asto the pleadings and pro- 
 cedure in the Court of Admiralty, see 
 Roscoe Adm. Practice. 
 
 (k) Sect. 37, Jud. Act, 1875 ; Arch. Pract. 
 by Prentice, 13th cd., p. 299. 3 & 4 Vict, 
 c. 65, and 24 Vict. c. 10, ss. 7-34. The Ida, 
 
 1 Lush. 6. The Druid, 1 W. Rob. 391. 
 
 (I) In estimating the damage, the loss 
 of the benefit of an agreement by reason of 
 the collision may be taken into account. — 
 The Matchless, 10 Jur. 1017. The Betsg, 
 
 2 Hagg. 28. The YorJcshireman, ibid, 30. 
 In one case the owner of an injured ship 
 was held entitled to recover for the loss of 
 a charter-party which was cancelled by 
 reason of the injury complained of. The 
 Star of India, 45 L. J. Ad. 102, L. R. 
 1 P. D. 466. In general the amount of 
 damages is referred to the registrar (the 
 CoHsett, 49 L. J. Ad. 24). See the JSolides, 
 
 3 Hagg. 367. The Colvmhis, 3 VV. Rob. 
 158.
 
 578 or COLLISION. 
 
 Part VI. from the mouths of the witnesses^ or read from the depositions^ and 
 
 — the judge's direetion on the law, give their opinion, in private eon- 
 
 sultation with him, as matter of nautieal skill, which of the two 
 
 vessels was to blame, or that neither or both were to blame, and that 
 
 opinion is almost always adopted by the court. 
 
 In pronouncing its decision the coui't proceeds secundum allegata 
 et probata [a). 
 
 By this procedure, before the enactment of positive regulations for 
 the prevention of collision, the rules of the sea, which usage had 
 established among mariners, were applied and vindicated in the 
 Court of Admiralty, where each cause was determined on principles, 
 not always consonant to those which would regulate its decision at 
 common law ; but, on the whole, perhaps, as conducive to the real 
 justice of the case, and as satisfactory to the litigant parties. Thus, 
 in the case of the Woodrop, cited ante, p. 575, Lord Stowell told the 
 Trinity INIasters, " that the law imposed upon the vessel having the 
 wind free, the obligation of taking proper measures to get out of the 
 way of a vessel close-hauled [b) , and of showing that it had done so. 
 If they thought proper precautions were taken by the persons on board 
 the Woodrop, then it would be necessary to inquii'e whether those 
 mcasui'cs were counteracted and defeated by improper measui'es taken 
 by those on board the other ship.'' Again, in a suit against the 
 Shannon, a steam vessel, for damage done by her to a sailing vessel, 
 the British Union, it was urged that the Shannon being on the star- 
 board tack, was right in holding her course, and that the British 
 Union, which was on the larboard tack, ought to have borne up [c) ; 
 but the Trinity INIasters observed, '^ that the state of the wind was of 
 no great importance, as the Shannon, not receiving her impetus from 
 sails, but from steam, should have been under command ; that steam 
 boats, from their great power, should always give way [d) ; that they 
 were satisfied the Shannon had seen the British Union, and that the 
 Shannon was to blame ;" and the court decreed accordingly. 
 
 By 25 & 26 Vict. c. 63, s. 54, the owners of a ship are not liable 
 
 beyond a certain amount in certain cases of collision, &c. : see 
 
 M. S. Act, 1854, sect. 506 ; ante, p. 341. 
 
 Jurisdiction As to the Court of Admiralty being now part of the High Court of 
 
 of Court of Justice, see ante, p. 3, note {e). The division of the High Court hav- 
 
 Admiraity. ^^^ jurisdiction in Admiralty cases is called the Probate, Divorce and 
 
 (a) See the 2\orth American, Swab. 358. of Buhlin Steam Faciei Co., 6 E. & B. 
 The Ann, 1 Lush. 55. The De^paich, 771. Tlie Bumfnes, P. C. Swab. 125. The 
 1 Lush. 98. The East Lothian, 1 Lush. North American, ibid. 358. 
 
 241, cases decided before the Jud. Acts. (c) See also the Jupiter, 3 Hagg. 320. 
 
 (b) See the case of the Baron Hollerg, (cl) The Shannon, 2 Hagg. Ad. Kep. 173. 
 3 Hagg. Ad Eep. 244; and Handi/side v. A steamer which, going iu a fog with un- 
 Wihon, 3 -Car. & Pay. 528. Jamenon v. abated speed, in a tack frequented by 
 Drinkald, 12 Moore, 148. In estimating coasters, did not, when hailed, order her 
 the liability of ships which have come into engines to be stopped, was held liable, a 
 collision, the question " close hauled" or not collision having ensued, to the amount of 
 is one of degree; the expression is not the damage and costs. — Pe/^A, 3 Hagg. 414. 
 limited to vessels which are sailing as close See also the Rose, 2 Wm. Kob. 1. 
 
 as possible to the wind. Chadwick v. Citij
 
 2. LAW np roTTET of atoftralty. 579 
 
 Admiralty Division of ilic Higli Court of Justice — for tlio sake of Chap. 3. 
 
 brevity this division is generally in this Avork referred to as the Court 
 
 of Admiralty, see cmte, p. 3, note (e). 13y 3 & 4 Vict. c. 65, s. G, 
 
 the Court of Admiralty has jurisdiction to decide all claims and 
 
 demands for damage received by any ship or sea-going vessel. By 
 
 24 Vict. c. 10, s. 7, the Court of Admiralty has jurisdiction over any 
 
 claim for damage done by any ship ; and such ship may be detained 
 
 until satisfaction given, or security to abide the event of any action 
 
 and for costs (e). 
 
 The Court of Admiralty has jurisdiction to entertain a suit brought 
 against a steam-tug by the vessel in tow for damage done to such 
 vessel by collision caused by the conduct of the tug (/). If through 
 the negligence or misconduct of those on board a vessel another 
 vessel receives or does damage, the owners of the wrong-doing vessel 
 would be liable in the Court of Admiralty for the damage, even 
 though there was no collision between the two vessels {g) . A vessel 
 under charter-party as to both her outward and homeward cargo, 
 whilst on the outward voyage, came into collision with another vessel : 
 — Held, that the freight for the homeward voyage was liable to arrest 
 for the damage (/?). Where there is a remedy both in personam and 
 in rem, a person who has resorted to one of these remedies may, if 
 he does not thereby get full satisfaction, resort to the other {i). 
 
 Sects. 527-529 provide for the arrest, in this country, of foreign 
 ships which have occasioned damage to any property of Her Majesty 
 or her subjects {k) . 
 
 In a case of collision between two foreign vessels, on the Kentish .Tnvisdictlon 
 coast, the Court of Admiralty held, that causes of collision were J."ii2Jj°vith 
 communis juris, and had no doubt of its jurisdiction to entertain the foreign 
 suit, and, if necessary, to compel security to be given for costs (/) . vessels. 
 Collision on the high seas between a British ship and a ship belong- 
 ing to foreigners. Neither the latter ship nor her owners were within 
 the territorial jurisdiction of the High Court of Admiralty. Applica- 
 tion that a writ should issue for service upon the owners abroad was 
 refused (?«) . A man-of-war belonging to a foreign country cannot 
 be proceeded against for a collision {n) . Nor can any ship which is the 
 property of the sovereign of a foreign country or nation and used for 
 public purposes — this applies to actions in rem, and the immunity is 
 
 (e) Formerly the Court of Admiralty general maritime law. The Ticonderoga, 
 
 had no jurisdiction where the collision took Swab. 215. The Gneswold, Swab. 430. 
 place within the body of a county. The {I) The Johann Friederich, 1 W. Rob. 
 
 Eliza Jane, 3 Hagg. 335. Violet v. Blagv.c, Pvcp. 35. Where a foreign ship was con- 
 
 Cro. Jac. 574. "I'elfhuseu v. Onnsley, 3 demued in the damage, and being sold, the 
 
 T. E. 315. The Fublic Oinnion, 2 Hagg. proceeds were insufficient to defray the 
 
 398. " amount, the owners of the cargo damaged, 
 
 (/) The Niglit Watch, 32 L. J. Ad. 47 ; who had been no parties to the actions, 
 
 1 Lush. 542. claimed to participate rateably in the pro- 
 
 {g) The Industri/, 40 L. J. Ad. 26. ceeds, but the court pronounced against 
 
 (A) The Orpheu's, 40 L. J. Ad. 24; L. R. their claim. The Sanceer, 4 Notes of Cases, 
 
 3 A. & E. 308. 498. 
 
 (0 The Oi-ient, 40 L. .T. Ad. 29 ; L. R. (m) The Clfii of Mecca, 45 L. J. Ad. 92. 
 
 3 P. C. 696. (m) Tlie Charlieh, post, p. 580, ante, 
 
 (ft) This does but give effect to tiic p. 540. 
 
 2 p 2
 
 580 
 
 OF COLLISION. 
 
 Part VI. not lost if the ship has been used for trading purposes (o) . The C, 
 belonging to the Khedive of Egypt and usually employed in carry- 
 ing mails and passengers, came to England with merchandise and 
 for repairs. Having completed her repairs, and while on a trial 
 trip down the Thames she came into collision with the B. On arrest 
 of the C. by the owners of B. : — Held, amongst other things, that his 
 Highness the Khedive is not entitled to the privileges of a sovereign 
 prince {b) . Some of the other points decided in this case seem to 
 have been erroneously decided. 
 
 Foreigners injured may sue in. the Court of Admiralty in respect 
 of injuries done by a British vessel on the high seas (c) . 
 
 It seems that in respect to injuries to personal property or personal 
 injuries, no action can be maintained in this country for an act done 
 abroad unless the act complained of is Avrongful both by the law of 
 the countiy in which it is committed and also by the laws of this 
 country {d). 
 
 In a cause of damage in the High Court of Admiralty in England 
 for a collision in Dutch Avaters by a Dutch ship against an English 
 ship, it appeared that the collision M^as caused solely by the negligence 
 of the pilot of the English ship, whom, by the Dutch law, the 
 owners were compelled to take on board ; but that, by the Dutch law 
 (conflicting with the English law as declared by the Merchant Ship- 
 ping Act, 1854), the owners of a ship doing damage to another ship 
 are liable to make good the damage, notwithstanding that the ship 
 doing the damage complained of was at the time navigated by and in 
 charge of a licensed pilot — Held, that an English Court of Justice 
 will not enforce a foreign raimicipal law, or give a remedy in the 
 shape of damages, in respect of an act which, according to its own 
 principles, imposes no liability on the person from whom the damage 
 is claimed ; and that the cause being instituted in an English court, 
 ought to be decided by the principles of the law of England ; and 
 that the English ship was exempt from liability (e) . 
 
 The Admiralty Division has jurisdiction to enforce by an action i)i 
 rem a judgment delivered by a foreign tribunal in an action in rem 
 for collision, &c. ; for it is the duty of an admiralty court of one 
 nation to enforce the decree of that of another nation, which duty 
 arises out of international comity (/). 
 
 As to the Admiraltv iurisdiction of county courts in cases of 
 collision of ships, see 31 & 32 Vict. c. 71, s. 3 ; 32 & 33 Vict. c. 51, 
 s. 2; 32 & 33 Vict. c. 51, s. 4; 38 & 39 Vict. c. 50. 
 
 Action on 
 
 foreign 
 
 judgTnent. 
 
 Count V courts. 
 
 («) The Pcci-lement Beige iii the Court 
 of Appeal, 27tli Feb., 1880, oveniiling tlie 
 Parlement Beige, 48 L. J. Ad. 18; L. K. 
 4 P. D. 129. Ill this ease the ship hail 
 been mainly used for carrvinff the mails. 
 
 \b) The C7m;-/.7V/^42 L. J.' Ad. 17; L. E. 
 4 A. & E. 59 ; L. E. 8 Q. B. 197. See the 
 remarks on this case by tlie CoiU't of Appeal 
 in the Parhment Beige, suj^ra. 
 
 (c) The Explorer, 40 L. J. Ad. 41 ; L. E. 
 3 A. & E. 289. 
 
 {d) The M. Moxham, 46 L. J. Ad. 17, 20; 
 L. E. 1 P. D. 43, 107, per Lord Justice 
 Mellish. 
 
 (e) The Salley, 87 L. J. Ad. 33 ; L. E. 
 2 A. & E. 3 ; 2 P. C. 193. 
 
 (/) The Citg of Mecca, 49 L. J. Ad. 17"; 
 L. E. 5 P. D. 28.
 
 3. ENACTxMENTS, ETC., AS TO LIGHTS, ETC. 681 
 
 As to the jiu'isclictiou of Vice-Admiralty Courts iu H. M/s Chap. 3. 
 dominious iu cases of damage doue by auy ship^ see 26 Vict. c. 24^ vice-Tcimi- 
 s. 10; 30 & 31 Vict. c. 45j App. ralty *Coui-ts. 
 
 3. Enactments and Regulations as to Lights, Sfc. 
 Enactments. 
 
 See 25 & 26 Vict. c. 63, ss. 25-28, 31, 32; 36 & 37 Vict. c. 85, Euadments 
 s. 17; 39 & 40 Vict. c. 80, s. 21 ; the enactmeuts as to lights, fog 
 signals, sailing rules, and for preventing collisions at sea. Aud sec 
 " An Act to make Regulations for preventing Collisions in the Sea- 
 channels leading to the River Mersey." 37 & 38 Vict. c. 52, 
 in Appendix. 
 
 Order in Council for preventing collisions at sea, made on 14th of Orders iu 
 August, 1879, under the M. S. Act Amendment Act, ^'°"'^"^- 
 1862 (g). 
 
 Whereas by the M. S. Act Amendment Act, 1862, it was enacted, 
 that on and after the 1st day of June, 1863, or such later day as 
 might be fixed for the purpose by Order iu Council, the regulations 
 contained in the Table marked C iu the schedule to the said Act 
 should come into operation and be of the same force as if they were 
 enacted in the body of the said Act; but that H. M. might from 
 time to time, on the joint recommendation of the Admiralty and the 
 Board of Trade, by Order in Council, annul or modify any of the 
 said regulations, or make new regulations in addition thereto or in 
 substitution therefor ; aud that any alterations in, or additions to. 
 
 (()) All owucrs aud masters of ships arc A s\stem of iuspectiou by surveyors, for 
 
 bound to take notice of these regulations, enforcing these regulations, is established, 
 
 and to carry aud exhibit no other lights, for the details of which, and the duties of 
 
 and use no other fog signals, than such as the surveyors, the reader is referred to the 
 
 are required by themj and, iu case of wil- Act (25 & 26 Vict. c. 63, s. 30). 
 ful default, the master or the owner of the It is provided that the rules coucerning 
 
 ship, if it appear that he was iu default, is, the lights and signals to be carried, under 
 
 for each occasion of their infringement, to local Acts, by vessels, in harbours, rivers, 
 
 be deemed guilty of a misdemeanor. and local uavigatious, are to continue iu 
 
 25 & 26 Vict. c. 63, s. 27. See Taleiitinc force, and .that in harbours, rivers, and 
 
 v. Clevgh, 8 Moore, P. C C. 367. JSLorgati local navigations, where no such rules exist, 
 
 v. Sim, H Moore, P. C C. 307. Church- they may, upon application of the Harbour 
 
 ward V. Palmer, 10 Moore, P. C. C. 472. Board or Corporation exercising jurisdiction 
 
 The Gen. Sttam Nav. Co. v. Morrison, 13 upon their waters, be made bv H. M. iu 
 
 C. B. 581. The Gen. Sfcam Nav. Co. y. Council. (25 & 26 Vict. c. 63, "^ss. 31, 32.) 
 
 Mann, 14 C. B. 127. ^forriaon v. The Au Order iu Council, dated 18th March, 
 
 Gen. Steam Xac. Co., 8 Ex. 733, cases 1880, approves of new bye-laws respectmg- 
 
 which, though decided on Admiralty Kegu- the navigation of the Thames. See the 
 
 ktions, which have been superseded, may Harbours, Docks, and Piers Clauses Act, 
 
 be useful iu the coustructiou or applicatiou 1847 (10 & 11 Vict. c. 27). 
 of those uow iu force.
 
 582 OF COLLISION. 
 
 Part VI. such regulations made in manner aforesaid sliould be of the same force 
 as tlie regulations in the said schedule : 
 
 And ^yhereas, by the same Act^ it "was further provided^ that "when- 
 ever it should be made to appear to H. M. that the government of 
 any foreign country "was "willing that the regulations for preventing 
 collisions contained in Table C in the schedule to the said Act, or 
 such other regulations for preventing collisions as are for the time 
 being in force under the said Act, should apply to the ships of such 
 country "when beyond the limits of British jurisdiction; H, M. might, 
 by Order in Council^ direct that such regulations should apply to the 
 ships of the said foreign country, "whether "within British jurisdiction 
 or not ; and it "was further provided by the said Act, that Avhenever 
 an Order in Council had been issued applying any regulation made 
 by or in pursuance of the said Act to the sliips of any foreign 
 country, such ships should, in all cases arising in any British court, 
 be deemed to be subject to such regulation, and should, for the 
 purpose of such regulation, be treated as if they "were British 
 ships : 
 
 And whereas, by an Order in Council made in pursuance of the 
 said recited Act, and dated the 9tli day of January, 1863, Her 
 Majesty "w^as pleased to direct : — First, that the regulations contained 
 in the schedule to the said Act should be modified by the substitution 
 for such regulations of certain regulations appended to the said 
 Order : 
 
 Secondly, that the said regulations appended to the said Order 
 should, on and after the 1st day of June, 1863, apply to French 
 ships, "whether "wdthin British jurisdiction or not : 
 
 And "whereas, by several Orders in Council subsequently made. 
 Her Majesty Avas pleased to direct that the regulations appended to 
 the said Order of the 9th day of January, 1863, should apply to ships 
 of the countries specified in the said Orders, "whether within British 
 jurisdiction or not : 
 
 And whereas, by Order in Council dated the 30th day of July, 
 1868, Her Majesty, on the joint recommendation of the Admiralty 
 and the Board of Trade, was pleased to make certain additions to the 
 regulations appended to the said first-recited Order in Council, for 
 the purpose of explaining Articles 11 and 13 of the said regulations, 
 and of removing doubt and misapprehension concerning the effect of 
 the said two Articles : 
 
 And whereas the Admiralty and the Board of Trade have jointly 
 recommended to Her "Majesty, that the regulations contained in the 
 Order in Council, dated the 9th day of January, 1863, and the addi- 
 tions to the said regulations contained in the said Order in Council 
 of the 30th day of July, 1868, shall be annulled from the 1st day of 
 September, 1880^ and that there shall be substituted for the said 
 regulations and additions respectively the new regulations hereinafter 
 set forth : 
 
 And whereas it has been made to appear to H. M. that the govern- 
 ments of the several foreign countries mentioned in the second
 
 3. ENACTMEXTS, ETC., AS TO LIGHTS, ETC. 583 
 
 schedule hereto are respectively Avilliug that the regulations contained Chap. 3. 
 
 in the first schedule hereto shall apply to ships of the said countries 
 
 respectively^ whether within British jurisdiction or not : 
 
 Now, therefore, H. M., by virtue of the powers vested in Her by 
 
 the said recited Act, and by and with the advice of Her Privy 
 
 Council, is pleased to direct : — 
 
 First, 'that on and after the 1st day of September, 1880, the regu- 
 lations appended to the said Order in Council of the 9th day of 
 January, 1863, and the additions to the said regulations con- 
 tained in the said Order in Council of the 30th day of July, 
 1868, shall be annulled, and that there shall be substituted for 
 the said regulations and additions respectively the new regula- 
 tions contained in the first schedule hereto. 
 Second, that the said regulations contained in the said first 
 schedule hereto shall, frora and after the 1st day of September, 
 1880, apply to ships of the countries mentioned in the said 
 second schedule hereto, Avhether Avithin British jurisdiction or 
 not («). 
 
 (a) The regulations apply to all ships, of Admiralty not to apply to foreign ships 
 
 whatever their nationality, within the on the high seas, nor to British vessels 
 
 limits of British jurisdiction; and to British coming into collision with them. The 
 
 ships, whether within British jurisdictioii Diaiifrics, 1 Swab. 63. S. C. on appeal, 
 
 or not, and with the acquiescence of the Thomson v. From, ibid. 125 ; 10 Moore, 
 
 governments of the countries mentioned, P. C. 461. The Zollverein, 1 Swab. 96. 
 
 to ships belonging to those countries. The iSaxoHea and the -EcZ^jwe, 1 Lush. 410. 
 
 whether within British jurisdiction or not. The Wild Hanger, 32 L. J. P. M. & A. 49. 
 
 25 & 26 Vict. c. 63, ss. 57, 58, 61 — 64. As to foreign ships obeying the rules of the 
 
 The earlier regulations as to navigation Thames, see the Fyenoord, Swab. 374. 
 lights and signals were held by the Court
 
 584 or coLLiJ-ioN. 
 
 Part VI. 
 
 FIRST SCHEDULE. 
 
 Regulations fok preventing Collisions at Sea_. 
 
 Preliminary. 
 
 Art. 1. Ill tlie followiiig lules every steam ship Avliicli is under sail 
 and not under steam is to be cousidercd a sailing ship ; and every 
 steam ship -which is under steam^ -whether under sail or uot^ is to be 
 considered a ship imder steam. 
 
 Rules concerning Lights («) . 
 
 Art. 2. The lights mentioned in the following Articles_, numbered 
 3j 4i, 5 J Q, 7, 8j 9j 10, and II, and no others, shall be carried in all 
 -weathers, from sunset to sunrise. 
 
 Art. 3. A seagoing steam ship -when under way shall carry — 
 
 (a.) On or in front of the foremast, at a height above the hull of 
 not less than 20 feet, and if the breadth of the ship exceeds 
 20 feet then at a height above the hull not less than such 
 breadth, a bright white light, so constructed as to show an 
 uniform and unbroken light over an arc of the horizon of 
 20 points of the compass; so fixed as to throw the light 10 
 points on each side of the ship, viz., from right ahead to 
 tAvo points abaft the beam on either side ; and of such a 
 character as to be visible on a dark night, Avith a clear' 
 atmosphere, at a distance of at least five miles. 
 
 [b.) On the starboard side, a green light so constructed as to 
 show an uniform and unbroken light over an arc of the 
 horizon of 10 points of the compass {b) ; so fixed as to 
 throw the light from right ahead to 2 points abaft the beam 
 on the starboard side ; and of such a character as to be 
 visible on a dark night, with a clear atmosphere, at a dis- 
 tance of at least two miles. 
 
 [c.) On the port side, a red light, so constructed as to shoAV an 
 uniform and unbroken light over an arc of the horizon of 
 10 points of the compass (6), so fixed as to throw the light 
 from right ahead to 2 points abaft the beam on the jjort 
 side ; and of such a character as to be visible on a dark 
 night, with a clear atmosphere, at a distance of at least two 
 miles. 
 
 (d.) The said green and red side lights shall be fitted mth inboard 
 
 (rt) Lights should be placed so as to he 316. The Mona, 2 Asp. Mar. La\\ Cases, 
 visible. The Bongamdlky L. E. 5 P. C. P. C. 182. 
 
 {h) The Gcmmia, 37 L. J. Ad. 50.
 
 3. ENACTMENTS, ETC., AS TO LIGHTS, ETC. 585 
 
 screens projecting at least tln-ee feet forward from tlie Chap. 3. 
 light, so as to prevent these lights from being seen across 
 the Idow. 
 
 Art. 4. A steam ship, when towing another ship, shall, in addition 
 to her side lights, carry two bright white lights in a vertical line one 
 over the other, not less than three feet apart, so as to distinguish 
 her from other steam ships. Each of these lights shall be of the 
 same construction and character, and shall be carried in the same 
 position as the white light which other steam ships are required to 
 carry. 
 
 Art. 5. A ship, whether a steam ship or a sailing ship, when 
 employed either in laying or in picking up a telegraph cable, or 
 which from any accident is not under command, shall at night carry, 
 in the same position as the white light which steam ships are re- 
 quired to carry, and, if a steam ship, in place of that light, three 
 red lights in globular lanterns, each not less than 10 inches in 
 diameter, in a vertical line one over the other, not less than three 
 feet apart : and shall by day carry in a vertical line one over the 
 other, not less than three feet apart, in front of luit not lower than 
 her foremast head, three black balls or shapes, each two feet in 
 diameter. 
 
 These shapes and lights are to be taken by approaching ships as 
 signals that the ship using them is not under command, and cannot 
 therefore get out of the way. 
 
 The above ships, when not making any way through the water, 
 shall not carry the side lights, but when making way shall carry 
 them. 
 
 Art. 6. A sailing ship under Avay (c), or being towed, shall carry 
 the same lights as are provided by Article 3 for a steam ship under 
 way, with the exception of the white light, which she shall never 
 carry. 
 
 Art. 7. Whenever, as in the ease of small vessels during bad 
 weather, the green and red side lights cannot be fixed, these lights 
 shall be kept on deck, on their respective sides of the vessel, ready 
 for use ; and shall, on the approach of or to other vessels, be ex- 
 hibited on their respective sides in sufficient time to prevent collision, 
 in such manner as to make them most visible, and so that tlie green 
 light shall not be seen on the port side nor the red light on the star- 
 board side. 
 
 To make the use of these portable lights more certain and easy, 
 the lanterns containing them shall each be painted outside with the 
 colour of the light they respectively contain, and shall be provided 
 with proper screens. 
 
 Art. 8. A ship, whether a steam ship or a sailing ship, when at 
 anchor, shall carry, where it can best be seen, but at a height not 
 exceeding 20 feet above the hidl, a white light, in a globular lantern 
 of not less than eight inches in diameter, and so constructed as to 
 
 (c) Sec the Esk,]pQst, p. 586. The George ArUe, Lush. T. C. 382.
 
 586 OF COLLISION. 
 
 Part VI. show a clear uniform aucl unbroken light visible all romid the horizon, 
 at a distance of at least one mile. 
 
 Art. 9. A pilot vessel, when engaged on her station on pilotage 
 duty, shall not carry the lights required for other vessels, but shall 
 carry a white light at the masthead, visible all round the horizon, 
 and shall also exhibit a flare-up light or flare-up lights at short 
 intervals, which shall never exceed fifteen minutes. 
 
 A pilot vessel, when not engaged on her station on pilotage duty, 
 shall carry lights similar to those of other ships. 
 
 Art. 10 {a), (a.) Open fishing boats and other open boats when 
 under way shall not be obliged to carry the side lights 
 required for other vessels ; but CA'Ciy such boat shall in lieu 
 thereof have ready at hand a lantern with a green glass on 
 the one side and a red glass on the other side ; and on the 
 approach of or to other vessels, such lantern shall be 
 exhibited in sufficient time to prevent collision, so that the 
 green light shall not be seen on the port side, nor the red 
 light on the starboard side. 
 {b.) A fishing vessel, and an open boat, M'hen at anchor, shall 
 
 exhibit a bright white light {b) . 
 (c.) A fishing vessel, when employed in drift net fishing, shall carry 
 on one of her masts two red lights in a vertical line one over 
 the other, not less than three feet apart. 
 {d.) A trawler at Avork shall carry on one of her masts two lights 
 in a vertical line one over the other, not less than three feet 
 apart, the up]je]' light red, and the loAver green, and shall 
 also either carry the side lights required for other vessels, 
 or, if the side lights cannot be carried, have ready at hand 
 the coloured lights as provided in article 7, or a lantern with 
 a red and a green glass as described in paragraph (a) of 
 this article, 
 (e.) Fishing vessels and open boats shall not be prevented from 
 using a flare up in addition, if they desire to do so. 
 
 (a) By onler lu council made the 24th to pi-event colllsiou, so that the gi-een light 
 
 day of March, 1880, the operation of thl;; shall not he seen on the port side, nor the 
 
 article, nunihered 10, is suspended until the red light ou the starhoard side. 
 1st day of September, 1881, and in lieu Fishing vessels and open boats whcu at 
 
 thereof, and in substitution therefor, the anchor, or attached to their nets and sta- 
 
 article numbered Oof the regulations aji- tionary, shall exhibit a bright white light, 
 pended to the order in council of the Dth Tishing vessels and open boats shall, 
 
 day of January, 1863, shall continue and however, not l)e prevented from using a 
 
 remain in force until the 1st day of .Sep- llare-np iu addition, if considered expe- 
 
 tcmbcr, 1881. dient. 
 
 The following is this article numbered (h) Practically the true criterion as to 
 
 9 : — the application of the regulation must be, 
 
 Art. 9. Open fishing boats and other open whether the vessel be actually holden by 
 
 boats shall not be required to cany the side and under the control of her anchor or 
 
 lights required for other vessels ; but shall, not. The moment she ceases to be so she 
 
 if they do not carry such lights, eariT a is in the category of a vessel under way and 
 
 lantern ha^"ing a green slide on the one side must carry the appointed coloured lights, 
 
 and a red slid'c on the other side ; and on The Mk, 38 L. J. Ad. 33 ; L. K. 2 A. & E. 
 
 the approach of or to other vessels, such 353 ; 2 Asp. Mar. Cas. 412. The Huglish' 
 
 lantern shall be exhibited iu sufficient time man, 47 L. J. Ad. 9j L. E. 3 T. D. 18.
 
 3. ENACTMENTS, ETC., AS TO LIGHTS, ETC. 587 
 
 (/.) The lights mentioned in this article are substituted for those Chap. 3. 
 mentioned in the 12tli, 13th, and 14th articles of the Con- 
 A'eution between France and England scheduled to the 
 British Sea Fisheries Act, 1868. 
 {(J.) All lights required by this Article, except side lights, shall be 
 in globular lanterns so constructed as to shoAV all round the 
 horizon. 
 Art. 11. A ship which is being overtaken by another shall show 
 from her stern to such last-mentioned ship a white light or a flare- 
 up light. 
 
 Sound Signals for Fog, ^'c. 
 
 Art. 1,2. A steam ship shall be provided Avith a steam whistle or 
 other efficient steam sound signal, so placed tliat the sound may not 
 be intercepted by any obstructions, and with an efficient fog horn to 
 be sounded by a bellows or other mechanical means, and also with 
 an efficient bell. A sailing ship shall be provided with a similar fog 
 horn and bell. 
 
 In fog, mist, or falling snow, whether by day or night, the 
 signals described in this article shall be used as follows; that is 
 to say, — 
 
 (a.) A steam ship under way shall make with her steam whistle, or 
 other steam sound signal, at intervals of not more than two 
 minutes, a prolonged blast. 
 {/).) A sailing ship under wa}^ shall make Avith her fog horn, at 
 intervals of not more tlian tAvo minutes, Avhen on the star- 
 board tack one blast, when on the port tack tAVo blasts in 
 succession, and Avhen Avith the wind abaft the beam three 
 blasts in succession, 
 (e.) A steam ship and a sailing ship, Avheu not under Avay, shall, 
 at intervals of not more than two minutes, ring the bell. 
 
 Speed of Ships to be moderated in Fog, Sfc. 
 
 Art. 13. Every ship, Avhether a sailing ship or steam ship, shall, in 
 a fog, mist, or falling snoAv, go at a moderate speed. 
 
 Steering and Sailing Rules. 
 
 Art. 14. When tAvo sailing [ships are approaching one another, so 
 as to involve risk of collision, one of them shall keej) out of the way 
 of the other, as folloAvs, viz. : — 
 
 (a.) A ship AA'hich is running free shall keep out of the Avay of a 
 
 ship which is close-hauled. 
 {b.) A ship Avhich is close-hauled on the port tack shall keep out 
 of the way of a ship which is close-hauled on the starboard 
 tack.
 
 588 OF COLLISION. 
 
 Part VI. (^O ^^'licii ^Jotli arc ruuning free a\ itli the Aviucl ou differeut sides, 
 
 the ship -^hich has the •wind on the port side sliall keep out 
 
 of the way of the other. 
 {d.) When both are running free "vvith the ■wind on the same side, 
 the ship Avhich is to -windward shall keep out of the way 
 of the ship which is to lecAvard. 
 (e.) A ship which has the wind aft shall keep out of the way of the 
 
 other ship {a). 
 Art. 15. If two ships under steam are meeting end ou, or nearly 
 end on {b), so as to involve risk of collision, each shall alter her 
 course to starboard, so that each may pass on the port side of the 
 other (c). 
 This article only applies to cases where ships are meeting end end 
 on, or nearly end on, in such a manner as to involve risk of 
 collision, and does not apply to two ships which must, if both 
 keep on tlieii' respective courses, pass clear of each other. 
 The only cases to which it does apply are, when each of the two 
 ships is end on, or nearly end on, to the other; in other Avords, 
 to cases in Avhich, by day, each ship sees the mast of the other 
 in a line, or nearly in a line, with her own ; and by night, to 
 eases in which each ship is in such a position as to see both the 
 side lights of the other. 
 It does not apply by day, to cases in which a shi]) sees another 
 ahead crossing her own course ; or by night, to cases Avhere 
 the red light of one ship is opposed to the red light of the 
 other, or Avhcrc the green light of one ship is opposed to the 
 green light of the other, or where a red light -without a green 
 light, or a green light without a red light, is seen ahead, or 
 Avhere both green and red lights are seen anywhere but ahead. 
 Art. 16. If two ships under steam arc crossing {d), so as to involve 
 risk of collision, the ship Avhich has the other on her own starboard 
 side shall keep out of the way of the other. 
 
 Art. 17. If two ships, one of which is a sailing ship, and the 
 other a steam ship, are proceeding in such directions as to involve 
 risk of collision, the steam ship shall keep out of the way (e) of the 
 sailing ship (/) . 
 
 (a) See the Spriug, L. E. 1 A. & E. 99. the jiulgiuent of the Admiralty Court), that 
 
 (6) The Constilulioit, 2'M.oo. P. C. (n.s.) the vessels were not crossing within the 
 
 453. lueaniiiir of the n^le then in force, which 
 
 (c) Seethe Princess Louisa, 2 Mar. Law was the same as the above. That the fact 
 
 Ca. 2J.1. The Concordia, L. K. 1 A. & E. tliat the port light only of the appellants' 
 
 93 ; The Gen. f>(eain Xar. Co., app., Tuin- ship was seen by the respondents was not 
 
 ^-/«, resp., 4 Moore, P. C.3G1. The Friends, conclnsive evidence that the vessels were 
 
 1 'SYm. Pob. 478. Tlie Gazelle, 1 Wm. crossing ; that the relative ^wsition of the 
 
 liob. 491. The Chide, Swab. 23 — cases vesselswas not only to be regarded, but 
 
 before this order in council. also the place in which the vessels were 
 
 {d) The appellants' ship in proceeding situated. The Velocitii, 39 L. J. Ad. 20; 
 
 down a river, and intending to keep her L. K. 3 P. C. 44. Tlie Sanger, L. E. 4 
 
 coui-se, in order to round a bend in the P. C. 519. 
 
 river, had her head slightly inclined so as (e) The Velasquez, 4 Moo. P. C. (>".s.) 
 
 to exhibit her masthead and port liglit 126. The Bonjainville,L. r\. o V. C. 316. 
 
 only to the respondents' ship, which was (/) 'The Jenng S. Barker, h.JX.iX.&i^. 
 
 proceeding up the river — Held (reversing 456. '
 
 3. EXACTJIENTS, ETC., A« TO LEGHTS, ETC. 589 
 
 Art. 18. Every steam ship when approaching another ship, so as Chap. 3, 
 
 to involve risk of collision, shall slacken her speed or stop and reverse, 
 
 if necessary {y) . 
 
 Art. 19. In taking any coiu'se authorised or required hy these 
 regulations^ a steam ship under way may indicate that course to any 
 other ship which she has in sight by the following signals on her 
 steam whistle, viz. : — 
 
 One short blast to mean " I am directing my course to star- 
 board^^: 
 
 Two short blasts to mean " I am directing my course to port" : 
 
 Three short blasts to mean '' I am going full speed astern.'^ 
 
 The use of these signals is optional ; but if they are used, the course 
 of the ship must be in accordance with the signal made. 
 
 Art. 20. Notwithstanding anything contained in any preceeding 
 article, every ship, whether a sailing ship or a steam ship, overtaking 
 any other, shall keep out of the way of the overtaken ship [h). 
 
 Art. 21. In narrow channels every steam ship shall, when it is safe 
 and practicable, keep to that side of the fairway or mid-channel 
 which lies on the starboard side of such ship. 
 
 Art. 22. Where by the above rules one of two ships is to keep out 
 of the way (i), the other shall keep her course. 
 
 Art. 23. In obeying and construing these rules due regard shall be 
 had to all dangers of uavigation ; and to any special circumstances 
 which may render a departure from the above rules necessary in order 
 to avoid immediate danger [k] . 
 
 No Ship, under any Circumstances, to neglect proper Precaittions. 
 
 Art. 24. Nothing in these rules shall exonerate any ship, or the 
 owner, or master, or crew thereof, from the consequences of any neg- 
 lect to carry lights or signals, or of any neglect to keep a proper 
 look»out, or of the neglect of any precaution which may be required 
 by the ordinary practice of seamen, or by the special circumstances of 
 the case. 
 
 {(j) The Jesmoiid, h. E. -IP. C. 1, The fault unless it is shown to the satisfaction of 
 
 Otter, L. R. 4 A. & E. 203. the court that the circumstances of the case 
 
 (7t) The Chanonrij, 42 L. J. Ad. 58. made departure from the regulation neces- 
 
 (/) The Agra, 4 Moore, P. C. (n.s.) 435, sary, 36 & 37 Vict. c. 85, s. 17. The 
 
 36 L. J*. Ad. 16. Fenham, L. E. 3 P. C. 216; the Bt/ioeli 
 
 {k) The Inflexible, Swab. 32. TheSo^Jc, Castle, L. E. 4 P. D. 219 ; and see 25 & 26 
 
 1 W. llob. 157; Thompson v. From, ]0 A'ict. c. 63, s. 28. Custom not founded on 
 
 Moore, P. C. 461. The American, L. E. necessity is no justification for their uon- 
 
 6 P. C. 131, wliere steamer towing another observance. The Unity, Swab. 100. The 
 
 vessel. In case of a collision the ship infring- Hand of Providence, ibid. 107. H\\& Seine, 
 
 ing one of the regulations is deemed to be in ibid. 41 U.
 
 590 
 
 or COLLISION". 
 
 Part VI. 
 
 Reservation of Rules for Harbours and Inland Navigation. 
 
 Art. 25. Nothing- in these rules shall interfere with the operation 
 of a special rule, duly made by local authority, relative to the navi- 
 gation of any harbour, river, or inland navigation. 
 
 Special Lights for Squadrons and Convoys, 
 
 Art. 26. Nothing in these rules shall interfere with the operation 
 of any special rules made by the Government of any nation with 
 respect to additional station and signal lights for two or more ships 
 of war or for ships sailing under convov; 
 
 I 
 
 SECOND SCHEDULE. 
 
 Anchoring 
 where drift- 
 net fishing 
 
 Duties of 
 master in 
 case of 
 collision, 
 
 Austria-Hungary . 
 
 Belgium. 
 
 Chili. 
 
 Denmark. 
 
 France. 
 
 Germany. 
 
 Great Britain. 
 
 Greece. 
 
 Italy. 
 
 Netherlands. 
 
 Norway. 
 
 Portugal. 
 
 Russia. 
 
 Spain. 
 
 Sweden, 
 
 United States. 
 
 " By 31 & 32 Vict. c. 45 (The Sea Fisheries Act, 1868), Ai-t. 12, 
 No boat shall anchor between sunset and sunrise on grounds Avherc 
 drift-net fishing is actually going on. This prohibition shall not 
 apply to auchorings which may take place in consequence of acci- 
 dents, or any other compulsory circumstances ; but in such case the 
 master of the boat thus obliged to anchor shall hoist, so that they shall 
 be seen from a distance, two lights placed horizontally about three 
 feet (one metre French) apart, and shall keep those lights up all the 
 time the boat shall remain at anchor,'' 
 
 The duties of the master or person in charge of a vessel in case of 
 a collision are provided for by 36 & 37 Vict. c. 85, s. 16.
 
 4, liAw m coM^roN lavv^ cori^Ts, 591 
 
 Chap. 3. 
 
 4. Law of England as administered in Common Law Courts — 
 Miscellaneous Cases. 
 
 By the law of England, as administered in the common law courts 
 before the Jud. Acts, if Loth vessels were to blame^ and the accident 
 arose from the joint fault of both^ each party bore his own loss. But 
 by Jud. Act, 1873, s, 23, sub-sect. 9, " in any cause or proceeding for 
 damages arising out of a collision between two sliips, if both ships 
 shall be found to have been in fault, the rules liithcrto in force in the 
 Court of Admiralty, so far as they have been at variance with the 
 rules in force in the Courts of Common Law, shall prevail.^^ See 
 ante, p. 573. 
 
 If one party can prove that the misfortune was caused by the neg- 
 ligence or want of skill of the other, and that he — though not 
 wholly free from negligence — could not have avoided it by the exer- 
 cise of ordinary care, he will be entitled, in an action to recover 
 compensation for the wrong, and for the loss direct and consequen- 
 tial which may have resulted from it {a) . The statutory provisions 
 which have been mentioned ; the established course of nautical prac- 
 tice, as explained by professional men ; the usages and regulations of 
 particular ports and rivers ; the state of the wind, the tide, and the 
 light ; the degree of vigilance of the masters and crews ; the speed at 
 which both vessels were proceeding {b) ; and all other circumstances 
 bearing upon their conduct and management will be considered in 
 determining this question. But of the sea, as of the road, the law 
 recognises no inflexible rule, the neglect of which by one party will 
 dispense Avith the exercise of ordinary care and caution in the other (c) . 
 
 In an action, determined before the Jud. Acts, for running down 
 a ship, it appeared that the defendant's ship had the wind free, 
 and Avas a light ship ; the plaiutiff"^s ship hard up in the wind, and 
 laden ; that the defendant's ship ought to have given way, and was 
 Avrong in not doing so. It Avas contended for the defendant, that 
 although he Avas wrong in not giving way, yet that the plaintiff" could 
 not recover, because he might have avoided the accident by altering 
 his helm at the right moment. Mr. Baron Bayley, in delivering 
 the judgment of the Court of Exchequer, said, "^'The rule is, that 
 the plaintiff" cannot recover if his ship were in any degree in fault, in 
 not endeavouring to prevent the collision. Here the plaintiff" had a 
 right to presume that the defendant's ship would do what she ought 
 to do. I quite agree, that if the mischief be the result of the com- 
 
 (a) Sec Thidall\.Bcll,\l M. & W.288. Vanderplanlc v. Miller, 1 M. & M. 169. 
 
 The Matchless, 10 Jur. 1017. The Betsu, Bndcje v. Grand June. Hail. Co., 3 M. & AV. 
 
 2 Hagg. 28. The TorksJiiremau, ih. 30.^ 241. Dai-is v. 3Imin, 10 M. & W. 546. 
 
 (J) The Fepperdl, Swab. 12. The Juliana, Clai/ards v. Defhick, 12 Q. B. 439. Siffb^ 
 
 ib. 20. The Ericson, ib. 38. The Vivid, ib. v. Hewitt, 5 Excb. 240. Greenland v. 
 
 88. The Despatch, ib. 138. Chapilin, ib. 243. Blatjor of Colchester v. 
 
 (c) Butterfidd v. Forrester, 11 East, 60. Broolce, 7 Q. B. 377. 
 Eandysidc v. Wilson, 3 Car. & P. 528.
 
 692 
 
 OF COLLISION. 
 
 Part VI. billed negligence of the two^, tliey must botli remain in statu quo, and 
 neither party can recover against the other. In this ease, however, 
 it was made ont that the fanlt was wholly with the defendant ; he had 
 the wind, and slionld have given way, and the plaintiff had a right to 
 expect that he Avonld make room ; he did not do so, and the conse- 
 qnence was, that the accident occurred, for which he is liable''' [a). 
 
 A steam ship meeting three barges was compelled by the negligent 
 management of the foremost barge to take a eonrse which brought 
 her into collision with the other two barges : — Held (affirming the 
 decision of the court below), that the owners of the first barge were 
 liable to those of the other two barges for the damage done by the 
 collision [b) . 
 
 As to the duty of a steamer where there is a risk of collision with 
 a sailing vessel, see Innian v. Beck, 37 L. J. Ad. 25. 
 
 As to the respective liabilities of tug and tow^ where a ship is being 
 towed, see the Cleadon, 11 Moore, P. C. 92 ; the Independence, 14 
 Moore, P. C. 103 ; the Aracan, 43 L. J. Ad. 30 ; L. R. 4 A. & E. 
 226 ; the Energy, 39 L. J. Ad. 25 ; the American, L. R. 6 P. C. 127; 
 the Mary, L. ll. 5 P. D. 14; the Cartshirn, L. R. 5 P. D. 35, 
 where tow claimed indemnity from tug. 
 
 In rendering salvage services the salvors'* ship came into collision 
 with the other ship. The salvors subsequently comj)leted the 
 salvage : — Held, that the collision being caused by the gross negli- 
 gence of the salvors, the salvors' ship was liable for the damage. 
 But that the salvors were nevertheless entitled to salvage (c). 
 
 See H. ]M. S. Belleroplion, 44 L. J. Ad. 7, where a question arose 
 whether it was the duty of those on board a ship which had a ram to 
 give notice of such fact. 
 
 When launching a vessel all necessary precaution must be taken 
 and reasonable and sufficient notice must be given to prevent any 
 danger to vessels in the river (d). 
 
 As to the liability of the master or owner of a vessel for damage 
 occasioned by the fault or incapacity of a qualified pilot where his 
 employment was compulsory, see ante, p. 159. 
 
 An action may be maintained by the owner of goods lost or 
 damaged by collision against the owners of the vessel which can be 
 proved to have been in fault. As between the owners and the 
 freighter, in cases of accident without negligence, the injury caused 
 by collision is a peril of the sea within the usual exception of the 
 charter-party {e). 
 
 (rt) This case, it must be remembered, (b) Tbe Sisters, 45 L. J. Ad. 39; L. E. 
 
 was determined before tbe Jud. Acts : see 1 P. D. 117. 
 
 Jud. Act, 1873, s. 25, ante, p. 591. rennaU (c) The C. S. Butler, 43 L. J. Ad. 17. 
 
 V. Garner, 1 C. & M. 21. As to a passenger (d) The Andalusian, 46 L. J. Ad. 77; 
 
 in the case of a collision tbrongb negligence L. K. 2 P. D. 221. The Ghngarry, 1 Dods. 
 
 being in the same position as the owner 382 ; 43 L. J. Ad. 37. The f'iaiDia, Swab, 
 
 of the vessel in which he is in, see 405. 
 
 Thorouqhgood v. Bryan, and Cattlin v. {e) Bidler v. Fisher, 3 Esp. 67. Smith 
 
 mils, 8 C. B. 115. Sec also 1 Smith, L. C. v. Scott, 4 Taiuit. 126. 
 132 (3rd edition). 
 
 I 
 I
 
 5. LAW IN COMMON LAW COURT:^. 593 
 
 The defeudautj in an action brought against him for damaging the Chap. 3. 
 plaintiff^s ship by collision^ is not entitled to deduct from the amount 
 of damages a sum of money paid to the plaintiff by insurers in respect 
 of such damage. The plaintiff will hold so much of the damages 
 as amounts to the sum so paid to him by the insurers as trustee for 
 them (/) . 
 
 In case of damage done by a vessel of the Crown^ the legal 
 responsibility rests with the actual wrong-doer. Where a collision 
 was caused by the commander of a Queen^s ship anchoring too near 
 the damaged vessel in squally and tempestuous weather^ he was con- 
 demned in the damage {g) . 
 
 A judgment in rem in the Coiu't of Admiralty is no bar to subse- 
 quent proceedings in personam in the High Court of Justice unless 
 the proceeds of the ship are at least equal to the amount of damage 
 suffered {h). 
 
 It has been held that the owners of a barge, sunk by unavoidable 
 accident in a public navigable river, have no duty thereby cast 
 upon them to remove it, or to use, after it has ceased to be in their 
 possession and control by their abandoning it or transferring it to 
 another person, any precaution by placing a buoy, or otherwise, to 
 prevent other vessels striking against it ; and are therefore not liable 
 to an indictment or to an action at the suit of a party sustaining 
 damage by reason of their omitting so to do [i) . And in an action 
 for damage done to the plaintiff^s vessel by the defendant's mooring 
 anchor, which had been removed from the place in a navigable river 
 where it had been for some time known to be, without anything to 
 indicate its new position, the declaration was held bad on demurrer 
 for not showing that the defendants were privy to the removal of 
 the anchor, or alleging any duty on them to refix it, or indicate its 
 new position [k) . 
 
 As to owners of vessels being liable for damage done to piers, &c., 
 see 10 A^ict. c. 37, s. 74, and The River Weir Commissioners v. 
 Adamson, 47 L. J. Q. B., &c., 193 ; the Cijnthia, 46 L. J. Ad. 56 ; 
 L. E. 2 P. D. 52, where a vessel was held liable for negligently 
 carrying out the orders of a dockmaster. The Bilbao, 1 Lush. 149 ; 
 Dennis v. Tovell, 42 L. J. M. C. 33; L. R. 8 Q. B. 10, where a 
 vessel by inevitable accident struck against a pier and damaged it. 
 The Excelsior, 37 L. J. Ad. 54 ; the M. Moxham, 46 L. J. Ad. 
 17; L. R. 1 P. D. 43, 107, where a British ship did injury to a 
 pier in Spain and it was held that the Spanish law was applical3le. 
 
 (/) Tates V. Wliite, 4 B. N. C. 272. The Corporation of the Trinity House, 41 
 
 Mason v. Sainshiuy, 3 Dougl. 61. L. J. Ex. 106. 1 Russ. on Crimes, by 
 
 (//) The Mentor, 1 Rob. 179. The Athol, Prentice, p. 526. 
 
 1 Win. Rob. 381. The Volcano, 2 W.Rob. (k) Hancock w. The YorJc, Newcastle and 
 
 337. The BirhenUad, 3 W. Rob. 75. Berwick Rail. Co., 10 C. B. 348. And see 
 
 (Ji) Nelson v. Couch, 33 L. J. C. P. 47. as to the duty in such cases of the pro- 
 See ante, p. 579. pvietors of a public canal, Parnaby v. 
 
 (0 Rex \. Watts, 2i^%^.Q*7o. Harmond Lancashire Canal Co., 11 Ad. & E. 223. 
 
 V. Pearson, 1 Camp. 515. Brown v. 3Ial- Parre.tt Navigation Co. v. Rohini, 10 
 
 lett, 5 C. B. 599. White v. Crisp, 10 Ex. M. & W. 593. 
 312. The Lords, Sfc.,of Romneii Marshy. 
 
 2 Q
 
 594 OF >[AT!ITDrE LIENS 
 
 Part VI. 
 
 CHAPTER, IV. 
 
 OF MARITIME LIEXSj AND HEREIN, 
 
 Sect. 1. Of the Befnition and Xature of Maritime Liens, p. 591. 
 
 2. Of tlieii' EanHiig and Frioritj/ inter se, p. 505. 
 
 3. Of Marshalling Assets for their Protection, p. 599. 
 
 4. Of their Duration and UxtinguisJiment, p. 601. 
 
 5. Of Procedure in Admiraltg to enforce them, p. 602. 
 
 6. Maritime Law of Foreign States as to Prioritg of Liens, S^'c, p. 607. 
 
 1. Of the Definition and Nature of Maritime Liens. 
 
 In the preceding pages we liave seen that persons who have 
 rendered services to a ship by tlieir labour as mariners, by pilotage, 
 towage, salvage, and the loan of money on bottomry for repairs or 
 necessaries, may obtain compensation or reimbursement from its 
 owners by proceedings in rem — that is, against the ship itself in the 
 Court of Admiralty. 
 
 We have seen, also, that the owners of a ship, which has been 
 injured by collision, are at liberty to seek their remedy in a cause of 
 damage instituted in that court against the ship, to the mismanage- 
 ment of which the injury is imputed, and that by the marine law, 
 and the maritime codes of foreign nations, the ship is bound {a), that 
 is, affected, with a privileged charge {b) for the security of the claims 
 above mentioned. 
 
 (rt) Ante, p. 99 et seq., in notes. Skips, la preference se regie par tes differences 
 
 he Code de Commerce (liv. 12, tit. 1, qnaliies des privileges," 'So. 2096. "Leg 
 
 Tp. 190), a.re "affectes aux dettes duvendeur creaneiers pririlegies qui sont dans le 
 
 et specialement « celles que la loi declare meme rang sont payes par concurrence," 
 
 pririlegies. See ante, p. 216. The mean- Xo. 2097. 
 
 ing of a privilege is thus explained in the (J) Affectes par privilege, Valin. Comm. 
 
 French Code, " Les liens du debiteur sont sur I'Ordounance, liv, 3, tit. 1, art. 11. 
 
 le gage commitn de ses creaneiers, et le prix A maritime lien accrues from the instant of 
 
 s'en distrilv.e entre eux par contribution, a the circumstances creating it, and not from 
 
 moins qti'il n'g ait entre les creaneiers des the time of the intervention of the court. 
 
 causes legitimes des prefe'rence." Code Civil, (The Pacific, 33 L. J. Ad. 120.) The prc- 
 
 liv. 3, tit. 18, ch. 1, No. 2093. "Les causes ceeding in rem makes perfect the lien 
 
 legitimes de preference sont les privileges et which was inchoate fi-om the moment the 
 
 hgpotheques," So. 2094. " Le privilege est lien attached. But a party by proceeding 
 
 v.n droit que la qualite de la creancedonne in rem under the 24 Vict. c. 10, s. 35, 
 
 a nn creancier d'etre pref ere aux antres which enacts that the jurisdiction confen-ed 
 
 creaneiers meme hypothecaires," eh. 2, by that Act on the High Court of Admi- 
 
 Xo. 2095. " Entreles creaneiers privilegies ralty may be exercised by proceedings in
 
 2. BANKING AND PETOJJITY OF. 595 
 
 A maritime lien — differing, like the liypotliec of the Scotch Chap. 4. 
 
 law (c), from a common-law lien, in this particular, that it exists 
 
 without possession, actual or constructive, of the subject on which it 
 is established — is a privileged claim upon a thing in respect of service 
 done to it, or injury caused by it, to be carried into effect by legal 
 process (d). 
 
 That process issues in this country from the Court of Admiralty, 
 which takes possession, by its officers, of the ship, freight, or cargo 
 upon which the privilege is alleged, inquires into its merits, and (in 
 the case of several claims) prefers or postpones it, if admitted, 
 according to an oi-der in which the dates of the services rendered, 
 and not the intrinsic vakie of them, determine their precedence. 
 The simplest illustration of this principle is the case of distinct claims 
 of the like nature, founded e. g. on bottomry bonds. It has been 
 stated, in an earlier part of this Treatise (e), that if two bonds have 
 been given, the last in point of date is entitled to priority of payment, 
 because the last loan furnished the means of preserving the ship; and 
 without it, the former lenders would have entirely lost their security, 
 salvam fecit totius ingnoris causam (/) . 
 
 2, Of their Ranking and Priority inter se. 
 
 Subject to this preference in respect of posterior date, all liens 
 suable in Admiralty, and arising ex contractu or quasi ex con- 
 tractu [g), as for wages, bottomry, pilotage, towage {//) , and salvage (^), 
 are esteemed to be equal and co-ordinate. Where the Court of 
 Admiralty, at the suit of a prior petens decrees the sale of a res, the 
 proceeds of which are exhausted by his judgment, all other creditors 
 who had liens upon it, and who before the decree would have been 
 admitted on their petition to compete with him, are thenceforth con- 
 cluded, and the res in the hands of its purchaser is discharged of 
 their liens {k) . If a surplus remains after satisfying the decree, the 
 rest of the suing creditors of equal grade will be entitled to share it 
 rateably. But until decree pronounced, the liens of all who have 
 
 rem, only obtains the security of the yes 367, ante, p. 528, as to the master's lien for 
 
 from the time it is attached by the process expenses incurred in the protection of a 
 
 of the court. See the JSlla A. Clarke, 32 particuhir article. 
 L. .1. Ad. 211 ; the Bold Buccleugh, 7 Moore, (e) Ante, p. 117. 
 
 P. C. 267 ; the St. Olaf, 38 L. J. Ad. 41 ; (/) Ante, p. 117. 
 
 L. R. 2 P. D. 113. As to the difference he- (g) The Gazelle, 3 Notes of Cases, 79. 
 
 tween a maritime lieu and a proceeding (h) Which may become salvage under 
 
 against the res, see the Pacific, 33 L.J, circumstances. The ilierfora, 1 E. & A. 17; 
 
 Ad. 120. The Gustaf,lj\\%\\. 586; 31 L. J. and see the KingalocJc, 1 Spinks E. & A. 
 
 Ad. 207. 267. 
 
 (c) Hypothec is a security established (i) As to salvage in respect of preserva- 
 
 by law to the creditor on goods continuing tion of life being payable in priority to 
 
 in the debtor's possession. Erskine's Prin- other claims for salvage, see ante, p. 556, 
 ciplcs. (Jc) The Saracen, 2 W. Rob. 453 ; 11 .Tur. 
 
 (rf) See ante, p. 106. See Ilinyston v 255 ; 6 Moore, P. C. 56. The Clara, the 
 
 Wendt, 45 L. J. Q. B. 440 ; L. R. 1 Q. B. D. Desdemonn, Swab. 158. 
 
 3 Q 3
 
 596 OF MARITIME LIENS — 
 
 Part VI. been diligent to submit tliem to judicial examination^ take rank, 
 without preference of the creditor by whom the proceedings have 
 been initiated, according to the relative lateness of the services in 
 ■which they have their origin. He who appears by this test of time 
 to have tlie prior right or lien in law, will be paid first out of the 
 proceeds of the res on which it attaches ; the next, and the next to 
 him, must be satisfied with what remains unforcstalled, however in- 
 sufficient it may be to meet his demand {a) . 
 
 It is obvious, that in the application of this principle, the very 
 nature of some liens will often secure to them priority over others. 
 The wages, e. g., of the mariners, earned by the service of bringing 
 the ship to her destined port, have insured the eventual value of all 
 services previously rendered, and therefore obtain priority over other 
 liens ex contractu or quasi ex contractu, as for salvage, pilotage, 
 towage, or bottomry [b] . Wages antecedently earned, as in an out- 
 ward or divided voyage, or due under contract at the expiration of 
 stipulated terms, without reference to the ship^s arrival at the port of 
 final destination, have been postponed to subsequent salvage [c], but 
 no such distinction will give bottomry precedence over them [d). It 
 has priority of prior salvage (e) , and gives way to subsequent salvage, 
 pilotage, and towage {f) . These instances will suffice to exemplify 
 the pervading general rule, that the services which, in the words of 
 Sir John Nicoll, ^^ operate for the protection of prior interests^' {(/) 
 are privileged above those interests. Bottomry, being the result on 
 the part of the lender, of a calculation of risk to which the stipulated 
 premium is made commensurate, is not regarded quite so favourably 
 as other liens ex contractu ; and, on the other hand, salvage, a 
 service rendered often at great risk of property and life to the 
 salvors, and without which the res might have been wholly lost with 
 all the liens and interests attaching to it, is liberally considered by 
 the law, yet not so as to obtain priority over subsequent bottomry or 
 wages [Ji). 
 
 The 191st sect, of the Merchant Shipping Act, 1854, does not 
 
 (a) The Constancia, 2 W. Rob. 405. Lord Stowell in the Sidney Cove, 2 Dods. 
 
 See the Clyther, 5 Ir. Jur. 317, where the 13 ; and of Judge Story, in the Brig 
 
 second bondholder had notice of the prior Nestor, 1 Sumner's Rep. (Am.), p. 86; and 
 
 bond. see the Jonathan Goodhue, Swab. 524. 
 
 (i) Ante, p. 489. The Madonna d'Idra, {d) Madonna d'Idra, 1 Dods. Rep. 40. 
 
 1 Dods. 40. The Sidney Cove, 2 Dods. 13. Constancia, 4 Notes of Cases, 68. The 
 
 The Constancia, 4 Notes of Cases, 520. William Safford, 1 Lush. 71. The Union, 
 
 The Kersey, 3 Hagg. 407. See the William 1 Lush. 128. 
 
 Safford, 1 Lush. 69, where it was held that (e) The Selina, supra. The Favorite de 
 
 a claim by a person who had paid wages to Jersey, 2 Rob. Rep. 232. 
 
 the ship's crew at the request of the master (/) The Dowthorpe, 2 W. Rob. 79. Tlie 
 
 on account of the ship, was in the nature Gv.staf, 31 L. J. Ad. 207. 
 
 of a wages claim, and entitled to the same {y) The Sidney Cove, supra. La Con- 
 
 priority (but see post, p. 602). stancia, 2 W. Rob. 405 ; and 4 Notes of 
 
 (c) The Selina, 2 Notes of Cases, 18; Cases, 518. Bitke of Bedford, 2 Hagg. 
 
 and the judgments of Dr. Lushington in 304. The jEliza. 3 Hagg. 89. 
 
 the Mary Anne, 9 Jurist, 95. The Union, (Ji) The Selina, supra. 
 1 Lush. 128. But see the obsen-ations of
 
 2. IJANKING AXD PEIOEITY OF. 597 
 
 alter the relation of the master to the seamen, aud he cannot compete Chap. 4. 
 with them to their detriment for a share in a fund {i) . 
 
 A master who has bottomried his ship by a bond,, binding himsell: 
 as well as the ship and freight, cannot, against the claim of the bond- 
 holder, assert the lien for wages, which, '^ so far as the case permits," 
 he now has under the Merchant Shipping Act. To allow precedence 
 to his lien Avould operate to the injury of those to whom he has made 
 himself personally responsible, and to whom he has hypothecated the 
 very fund from which he seeks preferential payment {k) . 
 
 The maritime lien of damage originating in the wrong of the I'liority of 
 master and crew of the vessel in fault, and founded on considerations lien for 
 of public policy for the prevention of careless navigation, takes pre- ^™' &*^ "^ ^"*^* 
 cedence within the limits which the law assigns to the indemnification 
 of the injured party, even though anterior in date, — of liens, ex con- 
 tractu (/) . It absorbs, in the event of the res proving insufficient to 
 meet all demands, the liens of wages, towage, pilotage, and bottomry, 
 leaving them to be enforced by proceedings against the persons of 
 the owners. Were it otherwise, the owners to whom the damage is 
 imputed would be indemnified at the expense of the injured party — 
 the wrongdoer at the cost of him to whom the wrong has been 
 done {i)i) . The suitor, in a cause of damage, is entitled to a resti- 
 tutio in integrum. This has been held to include an outlay which, 
 tliough probable, would have been discretionary if there had been no 
 collision, and was made indispensable by the collision. Compensa- 
 tion for the expenses attending the detention of the damaged ship, 
 and the amount of profit lost by such detention, also form part of it. 
 Discount, on a charge for repairs, if received, or which might have 
 been received if demanded, is a proper item of deduction. (See ante^ 
 p. 577, n.) 
 
 The lien of damage is preferred to prior bottomry on the ground 
 that the owner could only hypothecate his vessel subject to its legal 
 liabilities («). "I apprehend," said Dr. Lushington, in the case of 
 the Aline (o), ^^that the mortgagee and the bondholder cannot take 
 any right greater than the owners could confer, viz., a lien on the 
 ship as a security against the owner and all who claim under him. 
 Neither of them could be a competitor with a successful suitor in a 
 cause of damage; and for this reason, that the mortgage or bottomry 
 bond might, and often does, extend to the whole value of the ship j 
 if, therefore, the ship was not first liable for the damage she had 
 
 (i) The Salacia, 32 L. J. Ad. 41. As to for the protection of the hondhokler alouc. 
 
 the master's lieu for wages, see «»^e, p. 491. The Edward Oliver, 36 L. J. Ad. 13] 
 
 This lien will in general rank next after L. l\. 1 Ad. 379. The Darinff, 37 L. J. Ad. 
 
 the seamen's, aud though he be a part- 29 ; L. 11. 2 Ad. 262. The Jenny Liiid, 
 
 owner. The Feronia, 2 L. E. Ad. 65 ; 32 L. II. 3 Ad. 532 j 41 L. J. Ad. 63. 
 
 L. J. Ad. 60. (0 The Henares, 7 Notes of Casos, 54, 
 
 {k) The JoaatJian Goodhue, Swab. 524. suppl. 
 
 The Priscilla, Lush. 1. The master's cove- {m) The Linda Flor, Swab. 309. 
 
 uant is not for the beuetit of the holders of («) The Benares, 7 Notes of Ca3:s, 54; 
 
 carg(j, and therefore the o\vuers of cargo suppl. 
 
 are not entitled to invoke a mle established (o) 1 Wm. Rob. Eep. 119.
 
 598 OF MAEITIME IJENS. 
 
 Part VI. occasioued, the person receiving the injury might be wholly Avithout 
 " a remedy, more especially where the damage is done by a foreigner ; 
 
 and the only redress is by proceeding against the ship. Another 
 reason that would incline the preponderance in favour ot' the person 
 suffering the damage, arises from the consideration that he has no 
 option, no caution to exercise; the creditor on mortgage or bottomry 
 has ; he may consider all the possible risks and advance his money 
 or not, as he may think most advisable for his own interest. He has 
 an alternative ; the suitor in a cause of damage has none. In the 
 case of the bottomry creditor, moreover, the risk that is incurred of 
 losing the security is covered by the amount of the premium he is 
 entitled to demand; and therefore, against a mortgagee or bond- 
 holder prior to the period when the damage is done, I think the 
 successful suitor in a cause of damage has a preferable claim to be 
 indemnified^'' (a). 
 
 The case in "Avhich these observations were made was one in Avhich 
 the claim of a suitor in a cause of damage was opposed by the lien of 
 a bottomry bondholder for money bond fide lent to repair the wrong- 
 doing vessel subsequently to the collision. The judgment was, that 
 the owner of the innocent vessel was entitled to compensation to the 
 extent of the value of the wrong-doing vessel before the repairs were 
 commenced, and of such subsequent accretions to that value as had 
 arisen from the repair's effected at the expense of the OAvner, but not 
 of such accretions as had arisen from repairs subsequently done at 
 the expense of a bond fide lender on bottomry without notice of the 
 lien. 
 
 "The lender,^^ continues Dr. Lushington, "at the time the appli- 
 cation was made to him for the advances, could not possibly tell 
 whether the vessel in distress had committed damage or not. He 
 would, therefore, have to calculate not merely future contingencies, 
 but to inquire into all past transactions connected with the vessel. 
 The necessary consequence would be a material increase in the 
 amount of the premium. Again, with regard to the case of the 
 person Avho has received the damage, is not his interest benefited by 
 the vessel being repaired and enabled to proceed to her port of desti- 
 nation? Is he injiu'cd in the amount of his indemnity fund? Not 
 
 (a) 1 W. Rob. 119. To the same effect, that event, the ship iu ^hich he was iu« 
 
 and ill i-efercnee to the facts of the same terested havhig been repaired, was put in 
 
 case, is the dictnm of the Cliief Justice bottomry by the master acting for all par- 
 
 Jeevis, delivering the judgment of the ties, and he would be bound by that ti'ans- 
 
 Judicial Committee of Privy Council iu action;" that is, to the extent of being 
 
 the case of the Bold Buccleugh. "The excluded from a preference over the lien of 
 
 interest of the first bondholder taking a bottomry bondholder in respect of the 
 
 effect from the period ^\•heu the lien additional N-alue which had been created by 
 
 attached, he was, so to speak, a part owner the expenditure of his money on the ship 
 
 in interest at the date of the collision, and after the collision, but not to the extent of 
 
 the ship in which he and others were in- being postponed to a bottomry bondholder 
 
 terested was liable to its value at the date in respect of the full value of the ship as 
 
 of the injury done, without reference to it existed at the time of the collision. See 
 
 his claim. So (adds the learned Chief Sarmer v. Bell, 7 Moo. P. C. 284. The 
 
 Justice) by the collision, the interest of Bold Bv.ccleugh, 7 Moore's P. C. Cases, 267. 
 the claimant attached, and, dating from
 
 o. MAKSHALLING ASSETS. 509 
 
 at all. His interest is co-extensive Avith the riglit possessed by the Chap. 4. 
 owners of the vessel at the time when the damage was done, and his 
 claim is paramount to the extent of her value at that period. With 
 respect to any subsequent accretion in the value, arising from repairs 
 done after the period when the damage was occasioned, his claim to 
 participate in the benefit o£ such increase of value must depend upon 
 the consideration how that increase arises, and to whom in equity it 
 belongs. Against the owner who repairs his vessel at his own 
 expense, the claim of the successful suitor would extend to the full 
 amount of his loss against the ship and the subsequent repairs ; 
 Avhere, however, the repairs have been effected by a stranger, upon 
 the security of a bond of bottomry, the case is altogether different ; 
 and I cannot hold that, universally, bonds so granted must give 
 way to prior claims of damage." 
 
 Perhaps a damage lien has not a precedence over subsequent 
 salvage {b). 
 
 In the case of the Chimcera (c), where the proceeds of the ship and 
 freight were insufficient to meet a decree of damage, and the seamen 
 applied for payment of their wages. Dr. Lushington said, " that on 
 the principle that parties sustaining a loss were entitled to be reim- 
 bursed out of the proceeds of the ship and freight of the wrong-doer, 
 so far as they extend, and that the seamen had a remedy in per- 
 sonam, while by the statute {d) the claim of the Plchvick (the other 
 vessel) was limited to the value of the res," he was bound to pro- 
 nounce against the mariners. 
 
 A shipwright's possessory lien for repairs is subject to all liens on Shipwright's 
 the vessel at the time she was put into his hands for repairs (e). ^^^ sohcitor s 
 
 As to a solicitor's lien, see the Heinrlch, -11 L. J. Ad. 68 ; The 
 Soblomsteu, 36 L. J. Ad. 5. 
 
 3. Of Marshalling Assets for their Protection, 
 
 In the case of competing suits the Court o£ Admiralty, as a 
 Court of Equity, will marshall the assets, so as to protect one creditor 
 agailist another, and prevent the election of one from prejudicing the 
 other's claim (/ ) . For this purpose it will compel a suitor, whose 
 lien affects two funds, to proceed against the one to which another 
 suitor would be unable to resort. Thus, when of two bottomry bonds, 
 the earlier was secured on the ship and freight, and the other upon 
 the ship and cargo, — the court directed the earlier one to be satisfied 
 from the ship and freight, and the later one from the cargo, — thereby 
 
 {I) See the Aline, 1 W. Rob. Ad. 111. {d) 53 Geo. 3, c. 159. 
 
 The Gustaf, 31 L. J. Ad. 207; Cargo ex (e) The Oiistaf, 31 L. J. Ad. 207; Lush. 
 
 GaUcm, Br. & L. 181. Ad. 506. 
 
 (c) 2J..th Nov. 1852. See the Linda Flor, (/) Williams on Executors, b. 1, p. 4, c. 2j 
 
 Swab, 809. s. 2. Toller, b. 3, c. 8.
 
 600 OF MARITIME LIEXS. 
 
 Part VI . securing a fund sufficient to cover both («). So^ where there were 
 
 three bonds — one upon the ship, the second upon the cargo, and the 
 
 third upon the ship — the court directed the latest bond to be paid 
 preferably out of the proceeds of the ship ; the other bond upon the 
 ship to be paid out of Avhat remained of such proceeds ; and the bond 
 upon the cargo to be paid out of the freight and cargo. And upon a 
 supervening question, viz., out of what funds the -wages, pilotage, and 
 towage were to be paid, the court adhered to the principle of its 
 former decision, but directed the wages to be paid out of the gross 
 freight and the proceeds of the ship rateably, and the balance of the 
 proceeds and freight to be first applied to the third bond (on the 
 ship), and the balance of the freight and so much of the cargo as 
 should be necessaiy, in satisfaction of the second bond. 
 
 The effect of this decision in the circumstances of the particular 
 case was to leave the first bond unprovided for ; a result from which 
 there Avas no escape but by making the owner of the cargo, — " who 
 (in the words of the judgment) can never be affected by any bond, 
 till the ship and freight are exhausted, and ought never to be made 
 liable for wages, pilotage, and towage directly ,^^ — answerable to the 
 claim of bondholders who had lent their money without looking to 
 his property for their security [b) . No matter, indeed, what the 
 form of the security on the cargo may be, the court will not make it 
 available to the bondholder until the shij) and freight are exhausted. 
 The cargo cannot be liable in law unless the ship is (c) ; for a cargo, 
 said Dr. Lushington, in the case of the Constancia, cannot be hypo- 
 thecated for the benefit of the ship, that is, for the purpose of 
 exonerating the ship from any part of the burthen belonging to 
 her [d). As to freight, which is incident to the ship (e), and as such 
 part of the bondholder's security, the court will, on the petition of 
 the owner of the cargo, when hypothecated solely, although the 
 freight be not proceeded against, direct it to be brought in and 
 applied before resort to the cargo, in satisfaction of the bond ; and 
 the same course Avill be taken on the deficiency in the proceeds of 
 the ship, when ship, freight, and cargo have been jointly hypothe- 
 cated and arrested (/ ) . 
 
 The gi'ound upon which this practice rests, appears to be, that the 
 right of the master to hypothecate arises out of the necessities of the 
 ship with which he has been entrusted, for the double purpose of 
 earning freight for her owners, and performing their contract Avitli 
 the charterer or shippers of goods. It is his duty to carry the cargo 
 to its destination. By the sale or hypothecation of any pait of it, 
 
 (a) The r/7rfe«^, 1 W. Rob. 35. cited. Leslie r. Guthrie, 1 Scott, 683 j 
 
 {b) Tlic Constancia, 4 Notes of Cases, and Stephenson v. Dowson, 3 Beav. 342. 
 
 -85- (/) The Constancia, 4 Xotcs of Cases, 
 
 (c) Tlie Oswald, 14 Jurist, 96. 520. The Dcnothorpe aud the Prince Re- 
 
 (rf) The Constancia, 4 Notes of Cases, f/ent, 2 W. Eob. 84. The Mart/ Anne, 4 
 
 512- Jurist, 94, 95. The Bonaparte, 7 Notes of 
 
 (c) The Dowthorpe, 2 Win. Kob. 80; Cases, 55, suppl. 
 
 and the Frince Regent, ante, p. 118, there
 
 4. THEIR DURATION AND EXTINGUISH^IENT. 601 
 
 that object as respects tlie interest of its owner is ^^ro tanto frustrated. Chap. 4. 
 
 and for the same reason that the proceeds of a sale of cargo applied 
 
 to the ship^s necessities must be made good by the shipowner {g) — 
 the shipowner's property must be first applied to discharge the 
 demand of him who has lent his money for the ship's use. The 
 object, in short, of bottomry, is to protect the interest of the ship- 
 owner, and enable him to perform his contract ; his property, there- 
 fore, should be first liable on the bond by which the loan to him is 
 secured. It is otherwise in the case of salvage, by Avhicli owners of 
 ship and cargo are alike benefited, and therefore contributory i^ari 
 passic to the salvor's remuneration (A) . But though the value of the 
 ship and freight must be absorbed before the cargo can be resorted 
 to, it is competent to the bondholder to arrest the cargo in the first 
 instance, in order to secure the whole property over which the bond 
 extends. 
 
 A principle analogous to that which governs the Court of Admi- 
 ralty in marshalling assets for the protection of the weaker claimant, 
 is applied also to the protection of the owners of two or more res 
 against a creditor, so that one of them may not profit by the imposi- 
 tion of too large a share of burthen on the other. If a creditor has 
 a double security, e.g., upon freight and ship belonging to different 
 persons, the court will not allow him to elect upon which of the tAvo 
 his claim shall be enforced, but will apportion the weight of debt 
 between them (i). 
 
 4. Of their' Duration and Extinguishment, 
 
 There seems to be no certain limit to the duration of a maritime 
 lieu. It travels with the res into whosesoever possession it may come. 
 It is not impaired by a voluntary or extrajudicial sale (k) ; the pur- 
 chaser takes his bargain with its liability to the liens which affect it. 
 Were it otherwise, a lien would be effectual or become nugatory at 
 the option of him on whose property it attaches. " It is manifest," 
 said Dr. Lushington, "in the case of the Bold Buccleugh {I) , thdit 
 the mere change of property does not exonerate the ship from liabi- 
 lity to be sued. No one can reasonably contend that a sale after a 
 collision, with the knowledge of the fact, would produce that effect ; 
 because, if so, the owners of a vessel doing clamage would have 
 nothing to do but to sell her for the jiurpose of taking from the party 
 aggrieved his best secui'ity for compensation. Therefore, as a general 
 
 {g) See cDife, pp. 118, 119. Tlic Sidney Coi'e, 2Dod. 13. T]ie Batavia, 
 
 {h) The Emma, 2 W. Rob. 320. 2 Dod. 500. The Heart of Oak, 1 Notes of 
 
 («') The Doiuthoi-pe, 2 Notes of Cases, Cases, 115. The Eepulse, 4 Notes of Cases, 
 
 264. The Constancia, 4 Notes of Cases, 170. The JoIdi and Mary, Swab. 532. 
 
 512. Ami see the Fortitude, 2 Notes of (/) 7 Notes of Cases, 451; 7 Moo. P. C. 
 
 Cases, 524. 284. The Tioo Ellens, L. R. 4 P. C. 169. 
 
 (*) Samer v. Belt, 7 Moo. P. C. 284.
 
 602 OF MAEITIME LIENS. 
 
 Part VI. principle, I am prepared to tleuy, that it is true that a mere transfer 
 of a vessel, Avliich has been guilty of doing damage, can at all 
 diminish the liability of that vessel to be arrested/^ 
 
 A lien is extinguished by payment, by bail given in the Court of 
 Admiralty to an action instituted to enforce it (a) , and by sale of the 
 res imder the authority of a competent court. 
 
 Delay or want of diligence may also enable a prior petens to obtain 
 a decree in his favour and thereby work a forfeiture of a lieu, which, 
 if advanced pendente lite, would have been admitted, on the principles 
 above explained, to compete with that of the earlier suitor [b) . 
 
 A maritime lien may sometimes be lost by unreasonable delay in 
 enforcing it where the rights of third parties have intervened (c) . 
 
 A maritime lien cannot be revived for the benefit of one by whom 
 it has been discharged. It has been so decided on the claim of a 
 person who had advanced money to pay seamen^s wages {d), and on 
 a claim to be recouped advances to salvors {e). An agreement 
 to refer is no bar to an action in the Court of Admiralty, and there- 
 fore does not release the lien (/). 
 
 5. Of Procedure in Admiralty {g) to enforce them. 
 
 Next are to be considered the procedure for enforcing a maritime 
 lieu, and the mode in which, without detriment to the rights secured 
 to parties by the common law, effect is given to the privileged claims 
 which are cognisable in the Court of Admiralty. 
 
 And first, it is to be observed, that wherever a maritime lien 
 exists, a proceeding iii rem is competent {h) . To give effect to a 
 maritime lien the Court of Admiralty will forcibly dispossess those 
 who, for what cause soever, claim to detain a vessel (i). With an 
 entire disregard of the existence of all other encumbrances, the res 
 affected by the maritime lien will be arrested, and on decree made, 
 sold by the Admiralty marshal or commissioner {k). Once arrested, 
 the I'es cannot be taken out of the custody of the Admiralty by any 
 
 (a) The Kolamazoo, July, 1851 . {d) The Neio Eagle, 4 Notes of Cases, 
 
 lb) The Saracen, 2 W, Kob. Kep. 453 ; 427. The John Fehrman, 16 Jur. 1122. 
 
 and in P. C. on Appeal, 11 Jurist, 255. 6 See the William Saffbrcl, ante, p. 596. 
 
 Moore, P. C. 56. The Clara, Swab. 6. (e) The Louisa, 6 Notes of Cases, 532. 
 
 (c) " It is not necessary," says Judge (/) The Purissima Concepcion, 7 Notes 
 
 Stokt, " to hold that the lien is indelible, of Cases, 151. 
 
 or that it may not be lost, by gi'oss neglect (g) As to the Coui't of Admiralty being 
 
 and delay to enforce it, at least where the united with the High Court of Justice, see 
 
 rights of other persons have intervened." anle, p. 3, note. 
 
 Tiie Brig Xeslor, Sumner's Kep. (Am.) (h) 7 Moore, P. C. 267. 
 
 p. 85. See also the judsrment of C. J. (/) "SMiere salvors are in possession, sec 
 
 Jketis, in the case of the ^Bold Buccleiigh, the Glasgoio Packet, 2 W. Kob. 312, 313. 
 
 before cited, p. 598, u. The Charles Amelia, (A-) The Sannonie, 4 Notes of Cases, 174; 
 
 38 L. J. Ad. 17. 1 W. Kob, Kep. 178.
 
 5. PROCEDURE TO ENFORCE THEM. 603 
 
 other tribunal (/) ; its lieiiSj even in the case of bankruptcy and Chap. 4. 
 insolvency,, having priority over all other debts, even mortgages, 
 except those common law liens, the essential condition, and secu- 
 rity of which, possession, is removed by its process, and which are 
 entitled to be first satisfied out of the proceeds (m) of a sale under its 
 decree. 
 
 The ordinary mode of proceeding in the Court of Admiralty for the Writ of 
 assertion of a maritime lien is by arrest of the ship, &c. An action ''™""^out. 
 is first commenced by writ of summons. 
 
 The following is the form of this writ. (See Order 2, r. 7 a.) 
 
 No. 4a. 
 
 Writ of Summons in Admiralty Action in rem. 
 
 187 . [Here put the letter and number.'] 
 In the High Court of Justice. 
 Admiralty Division. 
 
 Between A. B., plaintiff, 
 
 and 
 The owners of the • 
 
 Victoria, by the Grace of God, &c. 
 
 To the owners and parties interested in the ship or vessel 
 of the port of [or cargo, ^c, as the case may be.] 
 
 We command you, that within eight days after the service of this 
 writ, inclusive of the day of such service, you do cause an appearance 
 to be entered for you in the Admiralty Division of our High Court 
 of Justice in an action at the suit of A. B. ; and take notice that in 
 default of your so doing the plaintiff may proceed therein, and judg- 
 ment may be given in your absence. Witness, Hugh MacCalmont, 
 Baron Cairns, Lord High Chancellor of Great Britain, this 
 dav of , 18 . 
 
 Memorandum to be subscribed on the writ. 
 
 N.B. — This writ is to be served within (twelve) calendar months 
 from the date thereof, or if renewed, from the date of such renewal, 
 including the clay of such date, and not afterwards. 
 
 The defendant [or defendants'] may appear hereto by entering an 
 appearance [or appearances] either personally or by solicitor at the 
 [ ] office at 
 
 (l) LadbrooJce v. Cnckett, 2 T. R. 649. The Eerseij, ibid. 407, 408. Tlic West- 
 (*») Tlie Orelia, 3 Hagg. Adm. Rep. 83. morelaiid, 4 Notes of Cases, 174.
 
 60-i OF MARITIME LIEN^. 
 
 Part VI. 
 
 Indorsements to be made on the writ before issue thereof. 
 
 The plaintiff's claim is for, &c. 
 
 This writ was issued by E. F._, of , solicitor for the said 
 
 plaintiff, Avho resides at , or, this writ was issued by the 
 
 plaintiff in person, who resides at \jnention the city, toivn or 
 
 parish, and also the name of the street atid number of the house of the 
 plaintiff's residence, if anyl. 
 
 Indorsement to be made on the tvrit after service thereof. 
 
 This writ was served by X. Y. \Jiere state the mode in which the 
 service loas effected, lohether on the owner, or on the ship, cargo or 
 freight, according to Order IX., rules 10, 11 and 12, as the case 
 may be] on the day of , 18 . 
 
 (Signed) X. Y. 
 
 By rules made in* April, 1880, a form is given for a writ in Admi- 
 ralty actions for issue from district registry. 
 Wan-aufc for Since the Judicature Acts the following rules in and made under 
 arrest. such Acts apply. By Order 5, rr. 11 and 11a: — In Admiralty 
 
 actions iw rem a warrant for the arrest of property according to the 
 Form A. in the Appendix to these rides, may be issued at the 
 instance either of the plaintiff or of the defendant, at any time after 
 the writ of summons has issued, but no warrant of arrest shall be 
 issued until an affidavit by the party or his agent has been filed, and 
 the following provisions complied with : — 
 
 («.) The affidavit shall state the name and description of the party 
 on whose behalf the action is instituted, the nature of the 
 claim, the name and nature of the property to be arrested, 
 and that the claim has not been satisfied. 
 
 {b.) In an action of wages the affidavit shall state the national 
 character of the vessel proceeded against ; and if against a 
 foreign vessel that notice of the institution of the action has 
 been given to the consul of the State to which the vessel 
 belongs, if there be one resident in London [a copy of the 
 notice shall be annexed to the affidavit] . 
 
 [c.) In an action of bottomry, the bottomry bond, and if in a 
 foreign language also a notarial translation thereof, shall be 
 produced for the inspection and perusal of the registrar, 
 and a copy of the bond, or of the translation thereof, certi- 
 fied to be correct, shall be annexed to the affidavit. 
 
 {d.) In an action of distribution of salvage the affidavit shall state 
 the amount of salvage money awarded or agreed to be
 
 5. PROCEDURE TO ENFORCE THEM, 605 
 
 accepted, and the name, address, and description oftlie Chap. 4. 
 
 party holding the same. 
 
 (e.) The court or judge may in any case, if he think fit, allow the 
 Avrit of summons to issue although the affidavit may not 
 contain all the required particulars. In a wages cause he 
 may also waive the service of the notice, and in a cause of 
 bottomry the production of the bond. 
 
 The following is the form referred to : — 
 
 Warrant of Arrest in Admiralty Action in rem. 
 
 187 . [Here put the letter and number.'} 
 In the High Court of Justice. 
 
 Admiralty Division. 
 
 Between A. B., plaintiff, 
 and 
 The owners of the 
 
 Victoria, ^c. 
 
 To the marshal of the Admiralty Division o£ our High Court of 
 Justice, and to all and singular his substitutes [or to the collector or 
 collectors of customs at the port of ] . We hereby command 
 
 you to arrest the ship or vessel of the port of [and 
 
 the cargo and freight, ^c, as the case may be'], and to keep the same 
 under safe arrest, until you shall receive further orders from us. 
 Witness, Hugh MacCalmont, Baron Cairns, Lord High Chancellor 
 of Great Britain, this day of 18 , 
 
 By Order 9, r. 9a, " In Admiralty actions in rem the warrant of 
 arrest shall be served by the marshal or his substitutes, whether the 
 property to be arrested be situate within the port of London or else- 
 where within the jurisdiction of the court, and the solicitor issuing 
 the warrant shall, within six days from the service thereof, file the 
 same in the registry." 
 
 By Order 9, r. 10a, " In Admiralty actions in rem, service of a writ Service of writ 
 of summons against ship, freight, or cargo on board, is to be effected of summons. 
 by nailing or affixing the original writ for a short time on the main- 
 mast, or on the single mast of the vessel, and, on taking off the pro- 
 cess, leaving a true copy of it nailed or affixed in its place." 
 
 By Order 9, r. 11, ^^ If the cargo has been landed or transhipped, 
 service of the writ of summons to arrest the cargo and freight shall 
 be effected by placing the writ for a short time on the cargo, and on 
 taking off the process by leaving a true copy upon it." 
 
 By Order 9, r. 12, " If the cargo be in the custody of a person who 
 will not permit access to it, service of the writ may be m^ade upon the 
 custodian "
 
 606 
 
 OF MAEITIME LIENS — 
 
 PartJI. 
 
 Procedure iu 
 Cooi't of Ad- 
 miralty. 
 
 As to the mode of proceeding in the Admiralty Court since the 
 Judicature Acts^ see Roscoe^s Practice. 
 
 So far, the proceeding is in rem, — a process to make perfect a right, 
 inchoate from the moment the lien attached, and the only one which 
 could be effectual iu the frequent event of the owners being unknown 
 or beyond the reach of the courts of this country. But when bail 
 has been given, as it may be, to the action, it becomes a proceeding 
 in personam, the suitor recovering the amount of his judgment from 
 the defendant and his bail {a). It is not in the option of the suitor 
 to refuse to accept bail justified according to the practice of the court, 
 to be of competent ability. If it were, the shipowner might be 
 deprived of the profit of his ship's employment ; the merchant of a 
 market for his goods ; both ship and goods might be deteriorated by 
 detention, or overwhelmed with an accumulation of fees of possession, 
 dock dues, and warehouse charges. 
 
 When a res is sold by order of the Court of Admiralty and its 
 proceeds brought into the registry, the lien of the suitor attaches 
 upon them as previously on the res itself {b). In undefended cases 
 an appraisement is directed before sale, in order to ascertain, for the 
 benefit of creditors, \vhat may be a proper reserved price. And when, 
 as in cases of salvage and of damage, the amount recoverable by the 
 suitor is governed or limited by the value of the property salved, or 
 the value of the wrong-going vessel, and the parties cannot agree in 
 their estimate of it, the court, though bail has been given, will order 
 the res to be appraised {c) . Should it afterwards be sold for a higher 
 or loAver price, that fact will have no influence on the adjudication ; 
 the amount of an appraisement, unless questioned and reviewed at the 
 time, being taken to be the real value {d} . 
 
 It has been mentioned, ante, p. 577, that in causes of collision the 
 judge is assisted by the nautical skill and experience of two of the 
 elder brethren of the Trinity House. The same course is also some- 
 times resorted to in the bearing of salvage suits. The opinions of the 
 Trinity Masters are attentively considered, the sentence is not theirs 
 but of the judge (e) . 
 
 Before decree, a conflict for priority between liens may be raised 
 by a second claimant, but a decree once pronounced, the liens of all 
 other creditors are forfeited, the i^es or proceeds of it passing into the 
 hands of the purchaser or successful suitor exonerated from its old 
 encumbrances (/). 
 
 (a) The Buchesse de Brabant, Swab. 264. 
 Smith V. BanJc of Xeio South Wales, 41 
 L. .T. Ad. 49. 
 
 (b) The Neptune, 2 Knapp, 94. The 
 possession of property hy the Court of 
 Admiralty, through its officers, is a possession 
 protective of the interests of all concerned, 
 and does not displace the rights or lien of 
 any party. The Kathleen, 43 L. J. Ad. 39. 
 
 (c) The Fersian, 1 Xotes of Cases, 305. 
 The MeUona, 6 Notes of Cases, 69. 
 
 (d) Ibid. And see the JBeisei/, 5 C. Rob. 
 296. 
 
 (e) See the Christiana, 7 Notes of Cases, 
 7; ibid. 47, suppl. Chapman \. Williams, 
 4 Notes of Cases, 586. The Benares, 7 
 Notes of Cases, 54. The Blenheim, ibid. 
 399. As to trial by a judge sitting with 
 assessors under the Jud. Acts, see Jud. 
 Act, 1873, s. 56; Order 36, rr. 2,27,28. 
 Arch, by Prentice, 13th ed. p. 384. 
 
 (/) As to when the judgment //; rem of
 
 6. FOBEIGN LAW AS TO PRIORITY OF. 607 
 
 Some question upon this point appears to have been founded on the Chap. 4. 
 
 form of the bail-bond required by the Admiralty, on payment of money 
 
 to a successful suitor. The observations of Lord Langdale upon 
 this instrument, in the case of the Saracen above referred to, may 
 appear to accredit the notion of a distinction in Admiralty debts, and 
 that payment is only made to a creditor of inferior degree condition- 
 ally on no other debts of a higher character appearing after judgment. 
 An article of an ancient sea-law, incorporated in some editions of the 
 Consolato, gives countenance to this construction [y] . The terms of 
 the bond are to restore the sum to be paid ; " in case any person 
 shall come in for his interest in the said sum, and pay the customary 
 fees as taxed in the cause, and put in sufficient security to answer the 
 action commenced in that behalf, and for his personal appearance at 
 such times as the same shall be required, and to pay what shall be 
 adjudged with expenses, and to bring into the registry of the court 
 the said sum whenever the court shall order, and to save harmless the 
 judge, registrar, marshal, and all others, officers of the court, as to 
 the payment of the said sum/"* 
 
 Without help from the light throAvn upon these words by the 
 practice of the court, they would seem to justify the doubt which 
 has been entertained. But, if the suitor elects to Avait the expiration 
 of a year and a day, before his application for payment, the bond 
 is not required. Whatever may have been the origin of the form, 
 its effect is not to guarantee the court and its officers against claims 
 paramount to those pronounced for, but to guard against the pos- 
 sible mischief of a res having been proceeded against and adjudged, 
 in error, as to its real ownership. This seems abundantly clear 
 from the authorities on the practice of the Admiralty (A), in con- 
 formity with which the learned judge of that court observed, in a 
 case lately decided by him, that he was '^ disposed to believe that 
 the expressions in the bond applied exclusively to interests in 
 the subject-matter, as in cases of title." The court, in the event 
 of its having been misled in the manner supposed, might be called 
 upon to rescind its own decree, and takes security to enable it to 
 do so. 
 
 6. Maritime Law of Foreign States as to Priority of Mens, ^c. 
 
 Although the writings of foreign jurists are bvit sparingly referred 
 to in the cases which have been cited, it is satisfactory to observe 
 how closely the decisions of the Court of Admiralty of England have 
 
 a foreign court is conclusive and passes ce qui Icur sera du de layers sans qu'ils 
 
 the property in a ship, see Castrique v. soicnt tenus de donner caution de rap-porter, 
 
 Imrie, 39 L. J. C. P. 350; L. E. 4 H. L, parceque personne ne pent les primer en 
 
 414. temps et en droits ; and see the Tecumseh, 
 
 (ff) Ordinance of Aragon and Catalonia, 6 Notes of Cases, 668. 
 
 A.D. 1343, Art. xxxi ; Pardessus, vol. v., (h) Clarke, Prax. Car. Adm. tit. 35, 38, 
 
 p. 390. 18 Les serviteurs et mariniers ponr 39. See 6 Notes of Cases, p. 666.
 
 608 OF MARITIME LIENS. 
 
 Part VI. adhered to the principles of the general Marine Law^ and how slight 
 
 is their variance from the positive enactments of other maritime states. 
 
 Loccenins {a), Stypmanu {b), Casaregis {c), Valin (d), Pothier (e), 
 cite with approval the rule respecting bottomry bonds in favour of the 
 one of the latest date. Bynkershoek is not a little angry with 
 Vinnius {J ) for writing of it as a curiosity in the law {g) ; Kuricke {h) 
 alone insists^ that as the moneys of successive lenders on bottomry 
 were advanced for the prosecution of the same voyage^ no privilege or 
 priority among them should be admitted. 
 
 The rule established by the French ordinance and by the Code de 
 Comme]'ce_, is in conformity with the weight of authority. Emerigon^ 
 in commenting upon it, adverts to a distinction which does not appear 
 to have called for notice in the cases which we have considered, and 
 may be usefully rememljered. ^' The third lender shall be preferred 
 to the second, and the second to the first, sic erunt novissimi primi et 
 primi novissimi. But creditors who have contributed to the relief 
 of the same distress shall be classed together, without regard to the 
 dates of their respective contracts'^ [i) . He says also, and Valin (A) 
 agrees with him, that the claim of the merchant whose goods have 
 been sold for the ship's necessities is of equal rank with that of the 
 lender on bottomry. For this doctrine he cites an article of the 
 Consolato (/), in which the Marine Law is declared to be, that if the 
 master is in need of money to enable him to prosecute the voyage, 
 and there is no one willing to lend it to him, and the owners of the 
 cargo have it not, he ought to sell as much of the goods as will pro- 
 duce the sum required ; in which case they whose goods are sold 
 shall be privileged above all other creditors of the ship, except the 
 master and the crew. 
 
 So also with respect to wages. The proclamation which Lord 
 Stowell delighted to make, of the sailor's right to cling to the last 
 plank of the ship in which he has served {m), was but a paraphrase 
 of the nde of the Consolato, that while a single nail of the ship 
 remains, it is pledged to the mariner's claim («). In that ancient 
 code, or collection of sea-laws, the grounds and conditions on whicli 
 priority is secured to wages ; over other liens upon a ship, are stated 
 with little less precision than in the latest of the decisions which we 
 have noticed. As a general rule the master was bound to pay the 
 
 («) Part 4, c. 6, n. 150, p. 420. Bodemerv brief gaat ; nam ex ratione com- 
 
 {h) Lib. c. 6, n. 8, p. 293. muni diceremus njv Bylbrief ccdere d; 
 
 (r) Disc. 18, No. 14. Eodeinerybrief nee aliter adhtic didic,'. 
 
 {d) Com. sur rOrclon. Tif. Same et Questiones Juris. Privati, lib. iii. c. 16. A 
 
 rente des vaisseaux. Byl-lriefis a bill or bond given to a ship- 
 
 (e) Pret. a la Grosse, art. 4, s. 2. wriglit to seciu-e a portion of a ship's price. 
 
 \f) Ad Peckiuni de Re Nautica. The doctrine of Vinnius is suppoi-ted by the 
 
 {g) Mint))) esse, qiiidam Frofessor juris Swedish Ordinance, a.d. 1667, part 3, c. 9. 
 ait, cur posferiorcs Bodemery-Brieven^rj- (/() Quest. 25, p. 880. 
 
 ores prcecedant. Sed cur im^ensce in rem (i) Vol. ii. c. 12, s. 4. 
 
 conservandam, pacto pignore antiquiorilHS (k) Vol. i. p. 343. 
 
 prqferantur, J. Ctomm, miratv.r nemo, ct (l) C. 62, by Pardessus. 
 
 rationem expedivit Ulpianus in I. vi. pr.ff. (m) The Sidney Cove, 2 Dods. 13. The 
 
 " Qui pot. in pig." Id. potiiis miror quod Neptune, 1 Hagg. Eep. 227. 
 iUe ipse ait dat een Bylbrief voor eeu («) Consolato, par Pardessus, c. 93.
 
 6. PETOEITY OF LIENS IN FOREIGN STATES. ^^9 
 
 wages of the seamen in the port at which lie received his freight [o] . Chap. 4. 
 If the shippers of goods proved false, and the vahie of their mer- 
 chandise insufficient to pay the freight due upon it^ unless the 
 seamen consented^ as a matter of favour to the master^ to wait until 
 their arrival at a place where he could procure money to pay them, 
 the ship was to he sold to answer their demands (p) . But it was 
 otherwise^ if hy agreement they were to be paid for their services out 
 and home, on their return to the port of departure ; in which case, 
 though the priority of their lien upon the ship over all other liens 
 was secured, they could advance no claim for payment until the end 
 of the voyage (q) . 
 
 By the ordinance of Louis XIV. it is provided (r), that the wages 
 of the mariners employed during the last voyage made by the ship are 
 privileged over the debts of all other creditors. With the same 
 limitation, the wages of the master and mariners are ranked by the 
 Code de Commerce before loans to the master for the necessities of 
 the ship during the last voyage, and the debts of material men and 
 lenders on bottomry [s). But the annotators of this article inform 
 us, that wages due for preceding voyages are not privileged, and 
 that the master and crew have themselves to blame, if, after bring- 
 ing a ship into port, they allow her to go to sea before satisfaction 
 of their liens. " Qy so doing,^-" say BoulayPaty (^), and llogron {u), 
 '' their debts are reduced to the rank of ordinary debts, and they 
 are barred altogether if not put in suit within a year from the termi- 
 nation of the voyage during which the wages were earned/^ 
 
 The priority of the lien for damage over liens ex contractu is not 
 expressly declared in any of the foreign maritime codes, or discussed 
 by tlie commentators upon them ; but it seems to result from the 
 unqualified terms in which the liability of the owner of the wrong- 
 doing vessel to the extent of the value of it, is everywhere laid 
 down [x). 
 
 (o) Consolato, par, Pardessus, c. 94. {t) Boulay Paty, Cours do Droit Comni, 
 
 {p) Ibid. tit. 1, S.2. 
 
 {q) Ibid. («) Code de Commerce explique, B. 2, 
 
 (r) Art. 16. tit. 1, art. 191. 
 
 (•«) Code de Comm. art, 191, (.r) Anie, p. 574. 
 
 2b
 
 APPENDIX. 
 
 1 & 2 Geo. 4, c. 76. 
 
 An Act to continue cuul amend certain Acts for 'preventing the various Frauds caul 
 Depredations committed on Merchants, Shipo^oners, and. Underwriters, by Boat- 
 men and others, within the Jurisdiction of the Cinque Ports; and, also for 
 remedying certain Defects relative to the Adpistment of Salvage, under a Statute 
 made in the Twelfth Year of the Reign of her late Majesty Queen Anne. 
 
 Whereas by an Act passed, in the 48th year of his late Majesty King George the 48 G. 3, c. iso 
 Third, intituled " An Act for preventing Frauds and. Depredations committed on 
 Merchants, Shipo^^-ners, and Underwriters, by Boatmen and others, within the 
 Jurisdiction of the Cinque Ports ; and also for remedying certain Defects relative 
 to the Adjustment of Salvage, under a Statute made in the 12th year of her late 
 IMajesty Queen Anne ;" which Act Avas to continue in force for 7 years, and from 
 tlience to the end of the next session of parliament : and whereas by an Act passed 
 in the 53rd year of his late Majesty King George the Third, the said above-recited 
 Act, except so far as the same was altered, was further continued in force for 
 7 years from the passing of the said Act, and from thence to the end of the next 
 session of parliament, and no longer : and whereas it is expedient that the said 
 recited Acts should be further continued, except so far as the same are altered by 
 this Act : be it therefore enacted, &c., " that it shall and may be lawful for the lord Lord warden to 
 warden of the Cinque Ports for the time being to nominate and appoint, by any swnpi'rto^'reter' 
 instrument or instruments under liis hand and seal, three or more substantial mino diffei-onces 
 persons in eacli of the Cinque Ports, 2 ancient towns and their members-, to J'^'/^,''^''^ "^ 
 adjust and determine any difference relative to salvage (which may arise) Ijetweeir " ' " ' 
 the master of any vessel and the pei-son or persons bringing such cables and 
 anchors ashore ; and in case any ship or vessel shall be either forced or cut from 
 her cables and anchors, by extremity of weather, or by any other accident wliat- 
 ever, and lea^'e the same in any roadstead, or other place within the jurisdiction 
 of the Cinque Ports, 2 ancient towns and their members, and the salvage cannot 
 be adjusted l^etween the persons concerned, then the same shall be determined by 
 any 3 or more of the said persons so to be appointed as aforesaid, within the sjxace 
 of 24 hours after such difference shall be referred to them for their determination 
 tliereof, any usage or custonr to the contrary in anywise notwithstanding : pro- Commi.ssioners 
 vided always, that such commissioners shall, immediately after their nomination to appoint a 
 jiroceed to elect some fit and jn-oper person, who shall be a notary or master registrai^ suii- 
 extraordinary in Chancery, as their secretary or register, except to the port of ject to appro- 
 Dover, Avhere the register for the time being of the Court of Admiralty of tlie ^'!^\!,'}","*' ''"''^ 
 Ciiniue Ports shall l^e the register ; and whicli secretary, or register, shall enter 
 in a l)nolv, to be kept for that ptirpose, all the proceedings of such commissioners, 
 and also a copy of tlie awards whicli they shall from time to time make ; but proceedings to 
 such election of secretaries, or registers, shall lie sul)jeet to the approliation of be entered? 
 the lord warden for the time being." 
 
 2. '-'And be it further enacted, that it shall be lawful for the saiil contmissioners rower lo eom- 
 to be appointed as af<n'esaid to decide on all claims and demands whatever, wliich ',"i''\'''^"'J.''Y''', . 
 shall or may be made by pilots, hovellers, boatmen, and other persons, for services p„ppj, ^viurii 
 of any sort or description rendered to any ship or vessel, as well for carrying olf may ai'ise. 
 from the shore to such slii]) or vessel any anchors, cables, or other stores, from any 
 part or port on llie coast of Kent, Sussex, Essex, or the Isle of Thanet, within the 
 jurisdiction aforesaid, as for the conducting and conveying such ships and vessels 
 
 2 r'2
 
 612 SALVAGE, ETC, 
 
 from tlie Downs, ami other bays ami roadsteads on the coast of Kent, Sussex, and 
 Essex, and the Island of Thanet, or from the sea or any other place, to Eamsgate, 
 Dover, or any other harbour, port, or place, on the said coasts, -within the juris- 
 diction aforesaid, or for the saving and preserving, within the jurisdiction afore- 
 said, any goods or mercliandize wrecked, strandetl, or cast away from any ship or 
 vessel, the master or owners thereof, or their agents being present at the place 
 where the commissioners shall be sitting ; and that the said commissioners shall 
 have full power and authority to hear and determine on all cases whatever of 
 services rendered by pilots, boatmen, and others, to shipping witliin the juris- 
 diction aforesaid, whether such ships or vessels shall be in distress or not ; and 
 that it shall be la'\\'ful for the said commissioners, whenever they see occasion, 
 to examine the parties or their witnesses upon their oath, wliich oaths shall ami 
 may be administered by the said secretary or register. 
 Commissioners 3. And be it further enacted, that it shall l)e lawful for the commissioners so 
 to be paid by the to be appointed, and their secretarj^ or register as aforesaid, who shall decide on 
 thSi^n'oubie °^ '^"J' sucli claims or demands as aforesaid, to demand and receive of and from tlie 
 suciifeesassbau owners of such sliips or vessels or the proprietors of any such goods or merchan- 
 th f^'-d^'-'^rdMi '^^^^^j against whom any pilot, boatman, or other person, shall make any claim or 
 ■ demand lor ser-\dces of any sort rendered to such ships or vessels, or for the sole 
 sa^^ng anel preserving any goods or merchandises wrecked, stranded, or cast awaj', 
 within the jurisdiction aforesaid, and such owners and proprietors are hereby 
 recpiired to pay to them, such fee or reward for deciding on every such claim and 
 demand as shall be adjudged to them in that behalf by tire lord warden of the 
 Cinc[ue Ports for the time being : provided always, that no person to be appointed 
 No commis- a commissioner by virtue of this Act shall have power or authority to act in any 
 ou"c?f ^the^piace other port or place than that in which he is resident, or from which his usual 
 where he is place of residence is not distant more than one mile ; and that before such com- 
 resiilent. missioner shall in any case proceed to act, they shall severally take the following 
 
 Commissioners oath before a magistrate or a commissioner of the Court of King's Bench or 
 lowfu'^oatli.'^' * Common Pleas, or a master extraordinary in Chancery, videlicet: — 
 Form of oath. "1,-4.5., do swear, that I have not, neither Avill I in anyway, dii-ectly or 
 indirectly, take or receive any fee, emolument, or reward, from any of the parties 
 whose interests are referred to my decision (save and except such fee or reward as 
 shall he allowed by the lord warden to be paid to me by the shipowners or pro- 
 prietors of the cargo, or their agents) ; and that I will not accept or receive any 
 fee whatever from the persons claiming reward or salvage ; but that I will decide 
 according to the best of my judgment, on the evidence to lie brought before me, 
 without lavour or affection to either partv. 
 
 " So help me GOD." 
 
 Pai-ties dissatis- 4. " And be it further enacted, that in ease the party or pai-ties so claiming to be 
 fied may appeal entitled to salvage or compensation for services rendered as aforesaid, or the partj"- 
 Coiirf of^Admi- '^^ parties Avho are to pay the same, or their agents, shall be dissatisfied with such 
 rairy, &c., but award and decision of the commissioners, it shall and may be la-svful for either of 
 rated^on'eivkf'^ them respectively, witliin eight days after such award is made, but not afterwards, 
 bail ill double ° to declare to the commissioners his or their desii'e of obtaining the judgment of 
 the amount of some competent Court of Admiralty respecting the said salvage or compensation 
 leaTNau. as aforesaid, and thereupon such party or parties shall forthwith be recjuired by 
 
 the conunissioners to declare whether he or they will proceed in the Court of 
 Admiralty of the Cinque Ports, or the High Court of Admiralts' of England, and 
 he or they shall so proceed within 20 days from the date of such award,"by taking 
 out a monition against the adverse party : but in such case the said comnrissiouei'S 
 are hereby empowered and lecpiired to permit the said ship and her cargo, not- 
 withstanding such declaration and proceeding, to depart on her voyage, or to 
 deliver to the o\\-ners and proprietors, or their agents, any goods or merchandises 
 respecting which any claim for salvage shall be made, ujion the OAniers or pro- 
 prietors of the same, or their agents, giving good and suflicient bail in double the 
 Bail to be taken amount of tlie sum awarded, and which bail the said commissioners, or any of 
 and certified them, are and is hereby authorized to take and certify according to the form con- 
 »cheduie° ° tained in the schedule hereunto annexed, and to transmit the same without delay 
 annexed. to the Court of Admiralty, in which the intention of proceeding shall be so 
 
 declared, together with a true certificate in A^-iting of tlie gross value of the whole
 
 1 & 2 GEO. 4, c. 76. 613 
 
 sliip and cargo, or otlier goods and luercluuidises respecting which salvage shall he 
 claimed, and also an official copy of such proceedings and awards, certified by the 
 said secretary or register, and the same shall he admitted hy such Court of 
 Adndralty as evidence in the cause." 
 
 5. " Provided always, and be it further enacted, that on an appeal so as aforesaid The appeal to be 
 being made to the Court of Admiralty of the Cinque Ports, or to the High Court couclusive. 
 of Admiralty, the same shall be taken and held to be final, and no ulterior ajDpeal 
 from sentence of the Court of Admiralty of the Cinque Ports, or from the High 
 Court of Admiralty, shall lie to the King in Chancery." 
 
 [The intermediate sections have been repealed by 17 & 18 Vict. c. 120.] 
 
 15. "And be it further enacted, that the lord warden of the Cinque Ports for the The lord wanlDii 
 time being, and the lieutenant of Dover Castle for the time being, and the deputy ^^'^ to** iJavc"hu 
 A\-ardens of the Cinque Ports for the time being, and the judge official and com- like power as 
 missary of the Court of Admu-alty of the Cinque Ports, two ancient towns and Justices of the 
 the members thereof for the time being, and any other officer who shall be specially inissioners under 
 appointed Ijy the lord warden, and all and every of them, shall and may execute, this Act. 
 perform, and do, witliin the jurisdiction aforesaid, all the acts, matters, and things 
 
 contained in this Act, in like manner, to all intents and purposes, as any magis- 
 trate or magistrates, or any commissioner or commissioners, to be appointed by 
 virtue of this Act, is and are authorized to execute, perform, and do the same." 
 
 16. And Avhereas by a certain Act, passed in the 28th year of the reign of King Mannoi-of 
 Henry the 8th, intituled, " For Pirates," it is among other things enacted to the mi"siou;ffoi' the 
 effect following, that whenever any commission for the punishment of certain punishment of 
 offences therein named shall be directed or sent to any place within the jurisdic- ^wy to** 28^H.°8 
 tion of the five ports, that then every such commission shall be directed unto the c. 25. 
 
 lord warden of the said port for the time being, or to his deputy, or unto three or 
 four such persons as the lord chancellor for the time being shall name and appoint : 
 and ■\\diereas by the said Act it is further enacted, to the effect following, that 
 every inquisition and trial, to be had by virtue of such commission, shall be made 
 and had by the inhabitants of the said five ports, or the members of the same : 
 and whereas for a long time past no such commission has been sent to any place 
 withi]! the jurisdiction of the Cinque Ports : be it enacted, for the more certain 
 and speedy administration of justice, "that as often as H.M. shall direct a com- 
 mission, according to the pi'pvisions of the aforesaid Act, to the admiral or 
 admirals, or his or their liexi tenant, deputy and deputies, it shall and may be 
 lawful for H.M., on the application of the lord warden of the Cinque Ports, to 
 direct such commission jointly to the admiral or admirals, or his or their lieu- 
 tenant, deputy and deputies, and also to the lord warden of the Cinque Ports for 
 the time being, and to his deputy ; and the connuissioners who shall sit by virtue 
 of such commission, so jointly addressed to whatever shire or place in the realm 
 the same shall be limited, shall have full power and authority to inquire into, 
 try, and determine all offences named in the said Act, or in any other Act 
 relating to ])roceedings under such commission, by the oaths of twelve good and 
 lawful inhabitants in the shire linuted in the said commission, whether the said 
 offences shall have been committed within the jurisdictions of the lord adnural of 
 England, or of the lord warden of the Cinque Ports ; and all and every trial, 
 conviction, judgment, and proceeding whatsoever under such commission, shall 
 be as good and effectual, to all intents and purposes in law, and shall be followed 
 by the same consequences to the offender or offenders, as if the same were had by 
 virtue of any separate commission to be issued under the ]n'ovisions of the afore- 
 said Act of King Henry the 8th : provided always, and it is hereby further Reservation of 
 declared, that this Act, or anything herein contained, _shall_ not extend, or be [}j° ^fi^ih-aity 
 construed to extend, to the taking away, al:)ridging, prejudicing, or impeaching, court, and of 
 in any manner whatever, the jurisdiction of the High Court of Admiralty of J,f°tf ''?■•' f'^T 
 England, or the jurisdiction of the Admiralty Court of the Cinque Ports, two Poj.^,'" ^"^"^"^ 
 ancient towns and their members ; but that it shall and may be lawful for the 
 said courts respectively, and the judge or judges thereof for the time being, to 
 have, use, exercise, and enjoy, jurisdiction over all such matters, rights, and 
 offences, as they have heretofore had, used, exercised, and enjoyed, as fully and 
 effectually, to all intents and purposes whatever, as if this Act had not been 
 made ; anything hereinbefore contained to the contrary in anywise notwith- 
 standing.
 
 614 
 
 FACTORS ACT, 
 
 Boimdarits of 18. And Avliereas douLts have arisen as to the exact l)Oiindaries of the jmisdic- 
 Vr'^^i'V" 'il!'^^''^'" ^^^'^ ^^ ^^^ ^'^^'^^ ^"o^^ adiuiial and the lord Avarden of the CiiKj^ue Ports, and it is 
 wank'u of the ^lin^ily expedient for the purposes of tliis Act that the same should he clearly set 
 t'iiKiuc Ports. forth ; ncAV it is hereby declared and enacted, tliat the boundaries of the juris- 
 diction of the lord ■warden of the Cinque Ports, in regard to any matter or thing 
 contained in this Act, shall be and shall be deemed and taken to be as follows ; 
 (tliat is to say,) from a point to the westward of Seaford, in the county of Sussex, 
 called Eed Clift', including the same ; thence passing in a line one mile without 
 the sand or shoal called the Horse of Willingdon, and continuing the same distance 
 ■without the ridge and new shoals ; and thence in a Une within hve miles of Cape 
 tirisnez, on the coast of France ; thence round the shoal called the Overfalls, two 
 miles distance from the same ; thence in a line without, and the same distance 
 along the eastein side of the Galloper Sand, until the north end thereof bears 
 "west-north-west true bearing from the west-north-west bearing of the Galloper it 
 runs in a direct line across the shoal called the Thwart Middle, till it reaches the 
 shore underneath the Maze Tower ; from thence following in a line of the shore 
 up to Saint Orsyth, in the county of Essex, and foUo'wing the course of the shore 
 up to the river Coin to the landing-place nearest Brightlingsea ; from thence in a 
 direct line to Shoe Bacon ; from thence to the point of SheUness, on the Isle of 
 Sheppey ; and from thence across the waters to Feversham ; and from thence 
 following the line of coast round the North and South Forelands, and Beachy 
 Head, till it reaches the said Red Cliff, including all the waters, creeks, and 
 havens comprehended between them : provided always, and it is hereby declared, 
 that nothing in this Act contained shall extend, or be construed to extend, to 
 enlarge or abiidge the local limits of the ancient jurisdiction, rights, and privileges 
 of the lord high admu'al of England, or the loid warden of the Cinque Ports 
 ix'spectively, or their respective representatives ; bitt that the same shall remain 
 according to ancient usage, and that the description hereinbefore c(jntained shall 
 only be deemed applicable to the ptirposes of this Act ; anything herein contained 
 to the contrary notwithstanding. 
 
 FACTORS ACT. 
 
 6 Geo. 4, c. D4. 
 
 An Act to alter and amend an Act for the better Protection of the Property of Mer- 
 chants and others, who ^nay hereafter enter into Contracts or Agreements in rela- 
 tion to Goods, JFares, or Merchandize, intrusted to Factors or Agents. 
 
 4. Geo. 4, c. 83. Whereas an Act passed in the 4th year of the reign of his present Majesty, 
 
 intituled " An Act for the Ijetter Protection of the Property of Merchants and 
 
 others, who may hereafter enter into Contracts or Agreements in relation to Goods, 
 
 Wares, or Merchandize, intrusted to Factors or Agents :" and whereas it is expe- 
 
 Factorsoranents ^^'^^^ to alter and amend the said Act, and to make further provisions in relation 
 
 having goods or to such contracts or agreements, as hereinafter provided : Be it therefore enacted, 
 
 merchandize in &c., that from and after the passing of this Act any person or persons intrusted, 
 
 their possession, ..V, ,. . ■■■ i. °p i -xi '^ ^ i i t 
 
 shall be deemed lor the purpose ol consignment or ot sale, with any goods, wares, or merclianclize, 
 
 to be the tiiie and who shall have shipped such goods, wares, or merchandize in his, her, or their 
 
 'L.'rvr vaiidit'y to own name or names, and any person or persons in whose name or names, any goods, 
 
 coniracts with wares, or merchandize shall be shij^ped by any other person or persons, shall he 
 
 ''o/Ki'rTt/e'iumJf *^^*-'^'iiit*^l^ '™*^1- taken to be the true owner or owners thereof, so far as to entitle the 
 
 the faith of such consignee or consignees of such goods, wares, or merclianclize to a lien thereon, in 
 
 lirojicrty. respect of any money or negotiable security or securities advanced or given by 
 
 such consignee or consignees to or for the use of the person or persons in whose 
 
 name or names such goods, wares, or merchandize shall be shipped, or in respect 
 
 of any money or negotiable security or securities received liy him, her, or them, to 
 
 the use of such consignee or consignees, in the like manner, to all intents and imv-
 
 6 GEO. 4, c. 94. 615 
 
 poses, as if such person or persons -was or Avere the trne owner or owners of such 
 goods, wares, and merchandize ; provided such consignee or consignees shall not 
 have notice Ly the hill of lading for the delivery of such goods, wares, or merchan- 
 dize, or otherwise, at or hefore the time of any advance of such money or nego- 
 tiable security, or of such receipt of money or negotiable security, in respect of 
 Avhich such lien is claimed, that such person or persons so shipping in his, hei", or 
 tlieir own name or names, or in whose name or names any goods, wares, or mer- 
 chandize shall be shipped by any person or persons, is or are not the actual and 
 ho)ui fide owner or owners, proprietor or proprietors, of such goods, wares, or 
 merchandize so shipped as aforesaid, any law, usage, or custom to the contrary 
 tliereof in anywise notwithstanding : provided also, that the person or jiersous in 
 whose name or names any such goods, wares, or merchandize are so shipped as 
 aforesaid shall be taken, for the purposes of this Act, to have been intrusted there- 
 with for the purpose of consignment or of sale, unless the contrary thereof shall 
 be made to appear by bill of discovery or otherwise, or be made to appear, or be 
 shown in evidence, by any person disputing such fact. 
 
 2. And be it further enacted, that from and after the 1st day of October, 1826, Persons iu poi- 
 any person or persons intrusted with and in possession of any bill of lading, India ^^l\^^^ ^ '^^'^ 
 Avarrant, dock warrant, warehouse- keeper's certificate, wharfinger's certificate, war- to be the owners 
 rant or order for delivery of goods, shall be deemed and taken to be the true owner so far as to make 
 or owners of the goods, wares, and merchandize described and mentioned in the ^'' "^ ^^^ ^"^ '"' 
 said several documents hereinbefore stated resj^ectively, or either of them, so far 
 
 as to give validity to any contractor agreement thereafter to be made or entered 
 into by such person or persons so intrusted and in possession as aforesaid, with any 
 person or persons, body or bodies politic or corporate, for the sale or disposition of 
 the said goods, -wares, and merchandize, or any part thereof, or for the deposit or 
 ]iledge thereof, or any part thereof, as a security for any money or negotiable 
 instrument or instrunjents advanced or given l)y such person or persons, bodj' or 
 bodies politic or coiporate, upon the faith of such several documents or either of 
 Ihem : provided such person or persons, body or bodies politic or corporate, shall 
 not have notice by such documents or either of them, or otherwise, that such 
 person or persons so intrusted as aforesaid is or are not the actual and 6o;i«/(V/f; 
 owner or owners, proprietor or proprietors, of such goods, Avares, or merchandizes 
 so sold, or deposited, or pledged as aforesaid ; any law, usage, or custom to the con- 
 trary tliereof in anywise notA\ithstanding. 
 
 3. Piovided always, and Ije it further enacted, that in case any person or per- Ko iicrsim to 
 sons, body or bodies politic or corporate, shall after the passing of this Act acccjit IJ*-''!"'!''' ■'■ 
 and take any such goods, Avares, or merchandize in deposit or jdedge from any t*i^ocis in thc*^ 
 such pei'son or persons so in possession and intrusted as aforesaid, Avithout notice hands r.r an 
 
 as aforesaid, as a security for any debt or demand due and OAving from such person iluteTOficn'L'aciji 
 or jiersons so intrtisted and in possession as aforesaid, to such person or persons, beyond tlio 
 Tiody or bodies politic or corporate, before the time of such deijosit or pledge, •'™<^^'"!iko{ ""' 
 
 .,''.,,,■'■ , J- ' IT IT Ti- agent s nitei-esL 
 
 then m tliat case such person or persons, Ijody or boilies politic or corpo- i,i x_\iq goods, 
 rate, so accepting or taking such goods, Avares, or merchandize in deposit or pledge, 
 shall ac(j[uire no further or other right, title, or interest in or upon or to the said 
 goods, Avares, or merchandize, or any such documents as aforesaid, than Avas 
 possessed or could or might have been enforced, by the said person or persons so 
 possessed and intrusted as aforesaid, at the time of such deposit or pledge as a 
 security as last aforesaid ; but such person or persons, body or bodies politic or 
 coi^iorate, so accepting or taking such goods, Avares, or merchandize in deposit or 
 pledge, sliall and may ac(|uire, possess, and enforce such right, title, or interest as 
 Avas possessed and might have been enforced liy such person or persons so possessed 
 and intrusted as aforesaid, any rule of laAV, usage, or custom to the contrary not- 
 Avithstanding. 
 
 4. And be it further enacted, that from and after the 1st day of October, 1826, I'tMvons amy 
 
 it shall be laAvful to and for any person or persons, body or bodies p(ditic or corpo- 5:„"/^^',^'^gj;[J|l j^j 
 rate, to contract Avith any agent or agents intrusted Avith any goods, Avares, or the ordinary 
 merchandize, or to Avhom" the same may be consigned, for the purchase of any eoiirse^of busi- 
 such goods, Avares, and merchandize, and to receive the same of and pay lor the tiiatcoursc, if 
 same to such agent or agents ; and such contract and payment shall ha lunding within the ' 
 upon and good against the OAvner of such goods, Avares, and merchandize, notAvith- t,°™ff^.;''"' 
 standing such person or persons, body or"' bodies politic or corporate, shall liaA'C
 
 616 
 
 FACTOES ACT, 6 GEO. 4, C. 94. 
 
 Tci^ons may 
 accei>l aud take 
 good!', &c., ill 
 jiledge frum 
 knoTTU ageuts ; 
 but in thai case 
 f^hall acquire 
 uo further 
 iutere>i than 
 •VTTi.-iio.'ses^^ed by 
 ^adi agcul al 
 the time <>f 
 such iileilgc. 
 
 Kight of the 
 true owner to 
 follow hi^ good; 
 while in the 
 hands of his 
 agent, &c., in 
 case of bank- 
 ruptcy, or to 
 recover them 
 from a third 
 person, upon 
 paying his 
 advances 
 >ecured upon 
 ihem. 
 
 In case of bank- 
 ruptcy of factor, 
 the owner of 
 goods so pledged 
 and redeemed 
 .-hall beheld to 
 have discharged 
 }'Vo t(i)ttu the 
 ilebt due, &c. 
 
 notice that the person or persons making and entering into such contract, or in 
 ■whose hehall" such contract is made or entered into, is an agent or agents ; provided 
 such contract and payment he made in tlie usual and ordinary course ot" husiness, 
 and that such person or persons, hody or hodies poHtic or cor}:)orate, shall not, 
 Avhen such contract is entered into or payment made, have notice that such agent 
 or agents is or are not authorized to sell the said goods, wares, and merchanclize, 
 or to receive the said purchase money. 
 
 5. And be it f mther enacted, that from and after the j^assing of this Act it shall be 
 hiAvful to and for auj- person or persons, body or bodies j^olitic or coiporate, to accejjt 
 and take any such goods, wares, or merchandize, or any such document as afore- 
 said, in deposit or pledge from any such factor or factors, agent or agents, not- 
 Avithstanding such person or persons, body or bodies politic or corporate, shall have 
 such notice as aforesaid, that the person or persons making such deposit or pledge 
 is or are a factor or factors, agent or ageuts ; but then and in that case such pei'son 
 or persons, body or bodies politic or corjwrate, shall accpiire no further or other 
 right, title or interest in or upon, or to the said goods, wares, or merchanclize, or 
 any sucli document as aforesaid, for the deli"\'ery tliereuf, than ^\'as possessed or 
 could or might have been enforced In" the said factor or factors, agent or agents, at 
 the time of such deposit or pledge as a security as last aforesaid ; but such person 
 or persons, body or bodies j^olitic or corporate, shall and may acquire, possess, and 
 enforce such right, title, or interest as was possessed and might have been enforced 
 by such factor or factors, agent or agents, at the time of such deposit or pledge as 
 tiibresaid, any rule or law, r;sage, or custom to the contraiy notwithstanding. 
 
 6. Provided always, and be it enacted, that nothing herein contained shall be 
 deemed, construed, or taken to deprive or prevent the true owner or owners, or 
 proprietor or proprietors of such goods, wares, or merchandize, from demanding 
 and recovering the same fi'om his, her, or their factor or factors, agent or agents, 
 before the same shall have been so sold, deposited, or pledged, or from the assignee 
 or assignees of such factor or factors, agent or agents, in tlie event of his, her, or 
 their banki-uptcy ; nor to present such owner or owners, proprietor or proprietors, 
 from demanding or recovering of and from any person or persons, body or bodies 
 politic or corporate, the price or sum agreed tu be paid for the purchase of such 
 goods, wares, or merchandize, subject to anyriglit of set-off on the part of such 
 perso]i or persons, bodj' or bodies politic or corporate, against such factor or factors, 
 agent, or agents ; nor to prevent such owner or owners, proprietor or proprietors, 
 from demantling or recovering of and from such person or persons, body or bodies 
 jjolitic or corporate, sucli goods, wares, or merchandize so deposited or pledged, 
 upon repayment tjf the money, or on restoration of the negotiable instrument or 
 instruments so advanced or given, on the security of such goods, wtu'es, or mer- 
 chandize as aforesaid, by su'ch person or persons, body or bodies politic or corpo- 
 rate, to such factor or factors, agent or agents, and uj^on payment of such furtlier 
 -um of money, or on restoration of such other negotiable instrument or instru- 
 ments (if any) as may have been advanced or given by such factor or factors, agent 
 or agents, to such owner or owners, proprietor or pioprietors, or on payment of a 
 simi of 3uoney ecptal to the amount of such instrument or instruments; nor to 
 prevent the said owner or owners, proprietor or jii'oprietors, from recovering of 
 and from such person or persons, body or bodies politic or corporate, any balance 
 or sum of money remaining in his, her, or their hands, as the produce of the sale 
 of such goods, wares, or merchandize, after deducting thereout the amoimt of the 
 money or negotiable instrument or instruments, so advanced or given upon the 
 security thereof as aforesaid : Provided always, that in case of the banki'uptcy of 
 any sucli factor or agent, the OA\iier or owners, proprietor or proprietors, of the goods, 
 wares, and merchandize so pledged and redeemed as aforesaid, shall be held to 
 have discharged j^ro tanto the debt due by him, lier, or them to the estate of such 
 banki'upt. 
 
 7. 8, 9, 10. These sections make certain acts by factors and agents misdemeanors, 
 &c. By 7 & 8 Geo. 4, c. 27, so much of the above Act as relates to any misde- 
 meanor therein mentioned is repealed. As to Ireland, see 9 Geo. 4, c. 53, s. 1. 
 As to India, see 9 Geo. 4, c. 74, s. 125. As to the present laAA', see 24 & 25 Vict, 
 c. 96, ss. 78, 79, noticed in 2 Buss, on Crimes, by Prentice, 393.
 
 ACT EELATING TO COUET OF ADMIEALTY, 3 & 4 VICT. C. 65 617 
 
 3 eSi 4 Vict. c. 56. 
 
 A)i Act further to regulate the Trade of Ships built and trading ifithvi the Limits of 
 the East India Compamfs Charter. 
 
 [Sects. 1-7 of this Act are repealed as to all H. M.'s dominions Ly Stat. Law 
 Fvev. Act, 1874 (No. 2).] 
 
 8. And he it enacted, that in all cases in which by the said last-mentioned Act For staying luo- 
 [3 & 4 W. 4, c. 55] it is made lawful for any governor, lieutenant-governor, or ceediugs, iu cer- 
 commander- in-chief of any of H.M.'s colonies, plantations, islands, or territories, 
 
 and they are thereby authorized and required, if any suit, information, libel, or 
 other prosecution or proceeding, of any nature or kind whatever, shall have been 
 coimnenced or shall hereafter be commenced in any court whatever in any of the 
 said colonies, plantations, islands, or territories respectively, touching the force 
 and eti'ect of any register granted to any ship or vessel, upon a representation 
 made to any such governor, lieiitenant-governor, or commander-in-chief, to cause 
 all proceedings thereon to be staj^ed, as in the said last-mentioned Act is provided, 
 it shall lie lawful, in the territories under the government of the East India Com- 
 pany, for the governor-general of India in council, or the governor of the presi- 
 dency of Fort AVilliam, in Bengal, or for the resjiective governors in council or 
 governors of the said presidencies of Fort St. George and Bombay, or the governor 
 of Prince of Wales Island, Singapore, and Malacca, according to circumstances, 
 and as the case may be, and they are respectively authorized and re([uired, if any 
 such suit, information, libel, or other prosecution or proceeding whate-s'er shall 
 have been commenced or shall hereafter be commenced in any of H.M.'s courts 
 Avhatever, in, or in any place subordinate to the said several presidencies, or the 
 government of Prince of Wales Island, Singapore, and Malacca respe.ctively, 
 touching the force and effect of any register granted to any ship or A^essel, upon a 
 lepresentation made to any such governor-general of India in council, or governor 
 uf the said presidency of Fort William, in Bengal, or governors in coiincil, or 
 go-s'ernoi's of the said presidencies of Fort St. George and Bombay respectively, or 
 such governor of Prince of Wales Island, Singapore, and Malacca, according to 
 circumstances, and as the case may be, to cause all proceedings thereon to be 
 stayed, if he shall see just cause so to do, until her Majesty's pleasure shall be 
 known and certified to him l>v H.M., by or with the advice of H.JI.'s privy 
 council ; and such governor-general of India in council, or governor of the said 
 presidency of Fort William, in Bengal, or governor m council, or governor of the 
 said presidencies of Fort St. George and liombay respectively, or such governor of 
 Prince of Wales Island, Singapore, and Malacca res])ectively, is hereby required, 
 to transmit to the court of directors of the East India Conqiany, to be by them 
 forthwith forwarded to the president of the l^oard of coimnissioners for the affairs 
 of India, to be laid before H.M. in council, an authenticated cojay of the proceed- 
 ings in every such case, together with his reasons for causing the same to be 
 stayed, and such documents properly verified as he may judge necessary for the 
 information of H.M. 
 
 9. And be it enacted, that the term "limits of the East India Company's Constructiou of 
 Charter" shall for all purposes of this Act be construed to mean all places and ^'^'■^' 
 
 seas eastward of the Cape of Good Hope to the Straits of Magellan. 
 
 ACT RELATING TO COURT OF ADMIRALTY («) . 
 
 3 & 4 Vict. c. 65. 
 
 An Act to improve the Practice and extend (he Jurisdiction of the High Court of 
 Admiraltij of England. 
 
 Whereas the jurisdiction of the High Court of Admiralty of England may be 
 in certain respects advantageously extended, and tlie practice thereof improved : 
 Be it therefore enacted, &c., that it shaU he lawful for the dean of the arches for the 
 
 (a) A3 to the Court of Admiralty now being part of tlie High Court of Justice, see ante, p. 3, n.
 
 0l8 
 
 ACT RELATING TO OOUET OF AD:\[irvALTY, 
 
 Ucaii of arches 
 to sit for judge 
 ot Court of 
 Admiralty in 
 certain ciises 
 
 Whcucver a 
 vessel t-liall be 
 arrested, Sec, 
 Court to have 
 jiu'isdictiou over 
 claims of mort- 
 gagees. 
 
 Court to decide 
 questions of 
 title, &c. ((•) 
 
 Appeals may be 
 made to the 
 Court of Admi- 
 ralty on distri- 
 buliou (i). 
 
 time being to be assistant to, and to cxercifse all tlie power, antlioritj, and juris- 
 diction, and to have all tlie privileges and protections of the judge of tlie said 
 High Coitrt of Admiralty, with respect to all suits and proceedings in the said 
 Court, and that all sttch suits and proceedings and all things relating thereto, 
 brought or taking place before the dean of the arches, whether the judge of the 
 said High Court of Admiralty be or be not at the same time sitting or transacting 
 the Inisiness of the same court, and also during any vacancy of the ottice of judge 
 of the said Court, shall be of the same force and effect in all respects as if the 
 same had been brought or had taken place before the judge himself, and all such 
 suits and proceedings shall be entered and registered as having been brought, and 
 as having taken place before the dean of the arches sitting for the judge of the 
 High Coiu't of Admiralty. 
 
 2. [Repealed by 42 & 43 Vict. c. 59.] 
 
 3. And be it enacted, that after the passing of this Act, whenever any .'■•hip or 
 vessel shall be under arrest («) by process issuing from the said High Court of 
 Admiraltv, or the proceeds of any sliip or vessel having been so arrested shall 
 luu-e been lirought into and be in the registry of the said coiu-t, in either sttch 
 case the said court shall have full jurisdiction to take cognizance of all claims and 
 causes of action of any person in respect of any mortgage of such ship or vessel, 
 and to decide any suit instituted by any such person in re.spect of any such claims 
 or causes of action respectively (6). 
 
 4. And be it enacted, that the said Court of Admiralty shall have jurisdiction 
 to decide all questions as to the title to or ownership of any ship or vesscd, or the 
 proceeds thereof remaining in the registry, arising in any cause of possession, 
 salvage, damage, wages, or bottomry, which shall be instittited in the said court 
 after the passing of this Act, 
 
 5. ((/) And be it enacted, that whenever any award shall have been made by 
 any jrtstices of the peace, or Ijy any person nominated by them or within the 
 jurisdiction of the Cin(j[ue Ports by any commissioners, respecting the amount of 
 salvage to be paid, or respecting any claims and demands for services, or compen- 
 sation, which such justices and commissioners "\\ithin theii' several jurisdictions 
 are empowered to decide under the provisions of two Acts passed in the 2ud year 
 of the reign of Kiiig George the 4th, for remedying certain defects relative to the 
 adjustment of salvage, or whenever any sum shall have been voluntarily paid on 
 any such account of salvage, services, or compensation, it shall be lawiul for any 
 person interested iii the distribution of the amoitnt awarded or paid to recjuire 
 distribution to l>e forthwith made thereof, and the person or persons l>y whom 
 f^uch amount shall Ije awarded, or in the case of voluntary payment the person b}- 
 whom the same shall have been received, shall forthwith proceed to the distribu- 
 tion thereof among the several persons entitled thereunto, to be certified in the 
 case of an award under the hand of the person or persons by whom such amount 
 shall be awarded, and an account of every such cUstribution shall be annexed to 
 the a^^•ard ; and if any person interested in the distribution shall think himself 
 a<-i-.riieved on account of its not being made according to the award, or otherwise, 
 ifshall be lawful for liim, within fourteen days after the making of the award, or 
 payment of the money, but not afterwards, to take out a monition from the said 
 High Coiu't of Admiralty, retjitiring any person being in possession of any part of 
 the amount awarded or voluntarily paid to bring in the same, to abide tlie judg- 
 ment of the court concerning the distrilnttion thereof ; and in the case of an 
 aAvard the person or persons by whom the aA\ard shall lla^■e been made shall, 
 upon monition, send without delay to the said High Court of Admiralty a copy of 
 the proceedings liefore him and them, and of the award, on unstamped paper, 
 certified under his or their hand ; and the same shall be admitted l>v the court as 
 evidence, and the amount awarded or voluntarily paid shall lie distributed accord- 
 ing to the judgment of the court. 
 
 (j. And be it enacted, that the High Court of Admiralty shall ha\e jurisdiction 
 
 («) See 24 Vict.e. 10, s. 11. 
 {b) The Fortittnl,'. 2 Rob. 217. 
 ((•) These sections ai>i>ly only to British shii e. 
 The InO.ia, 32 h, J. Ad. iSa. 
 
 ((?) 9 & 10 Vict. c. 09, s. 2, repeals so luuch of this 
 Act as relates to awards made by justices and 
 others in salvage cases and appealstherefrom.
 
 3 & 4 VICT. c. 65. 610 
 
 to ilecidc all claims aiul deiiiaiuls whatsoever in the nature of salvage (c) for services The CourUn 
 rendered to or damage received l)y any ship or sea-going vessel, or in the nature tci-taiu cases 
 of to\\-age, (g) or for necessaries supplied to any foreign ship (/() or sea-going vessel, &c."(/) "'' '^'' ^' 
 and to enforce the payment thereof, Avhether snch ship or vessel may have been 
 within the body of a county, or upon the high seas (i), at the time when the services 
 A\-ere rendered or damage received, or necessaries furnished, in respect of which 
 such claim is made. 
 
 7. And be it enacted, that in any suit depending in the said High Court of E\iik'ucc may bo 
 Admiralty, the court (if it shall think fit), may smnmon before it, and examine taken viva voce 
 or cause to be examined Avitnesses liy Avord of mouth, and either before or after ii<-'l'6iCouit. 
 examination by deposition, or before a commissioner, as heremafter mentioned ; 
 
 and notes of such evidence shall be taken doAvn in Avriting by the judge or 
 registrar, or by such other person or persons, and in such manner, as the judge of 
 the said conrt shall direct. (See Judicature Act, 1875, 0. 37, r. 1.) 
 
 8. And be it enacted, that the said court may, if it shall think fit, in any such Evidence may 
 suit issue one or more special commissions to some person, being an advocate of '^° .*^;''^^'^ f"'^ 
 the said High Court of Admiralty of not less than seven years' standing, or a commhisioner. 
 barrister at laAV of not less than seven years' standing, to take evidence by Avord 
 
 of month, upon oath, A\'hich every such commissioner is hereby empoAvered to 
 administer, at such time or times, place or places, and as to such fact or facts, and 
 in such manner, order, and course, and under such limitations and restrictions, 
 and to transmit the same to the registiy of the said court, in such form and 
 manner as in and by the commission shall be directed ; and that such commis- 
 sioner shall be attended, and the Avitnesses shall be examined, cross-examined, 
 and re-examined by the parties, their coiinsel, proctors, or agents, if such parties, 
 or either of them, shall think ht so to do ; and such commission shall, if need be, 
 make a special report to the court touching such examination, and the conduct or 
 absence of any A\dtness or other person thereon or relating thereto ; and the said 
 High Court of Admiralty is hereby authorised to institute such proceedings, and 
 make such order or orders, upon such report, as justice may requii'e, and as may 
 be instituted or made in any case of contempt of the said court. (See Judicature 
 Act, 1875, 0. 37. r. 4.) 
 
 9. And be it enacted, that it shall be laAA^ful in any suit depending in the said Aucmlaucc df 
 Court of Admiralty for the iudoe of the said court, or for any such commissioner !^'!?;'lf,'^.^*?f '""J 
 appomted m piu'suance of tms Act, to recpure the attendance ol any Avitnesses, paiicrs may be 
 and the production of any deeds, eA^idences, books, or Aviitings, by AA-rit, to l»e compelled by 
 issued by such judge or commissioner in such and the same form, or as nearly as *"" l'^'"''- 
 anay be, as that ia Avhich a AA'rit of suhiKena ml tcstificandiun, or of suhprnna chices 
 
 tecum, is now issued by H.M.'s Court of Queen's Bench at Westminster ; and 
 that every person disobeying any such Avrit so to be issued by the said judge or 
 conunissioner shall be considered as in contempt of the said High Coiu't of 
 Admiraltv, and may be punished for such contempt in the said court. 
 
 10. [Repealed by Stat. LaAv Rca'. Act, 1874.] 
 11 to 17. [Repealed by 42 & 43 Vict. c. 59.] 
 
 18. And be it enacted, that it shall be laAvful for the judge of the said High Power for judge 
 Court of Admiralty from time to time to make such rules, orders, and regulations of Admiralty to 
 respecting the practice and mode of proceeding of the said court, and the conduct court, 
 and duties of the officers and practitioners therein, as to him shall seem fit, and 
 from time to time to repeal or alter such rules, orders, or regulations : provided 
 ahvays, that no such rules, orders, or regulations shall be of any force or effect 
 until the same shall liaA'e been approA'ed by H. M. in council. 
 
 (' ) See 17 .Sc 18 Vict. c. lOi, s. 476, post. with necessaries, while lying in a British colonial 
 
 (/) See 2i Vict. c. 10. As to the jurisdiction iiort (the Anna, 4tj L. J. Ad. 15) ; but not where 
 
 of the county courts, see 31 & 32 Vict. c. 71 ; 32 i: lying in a foreign port. The India, 32 L. J. Ad. 
 
 33 Vict. c. 51, jxM. 85. As to the meaning of " necessaries." see the 
 
 (y) Claims " in the nature of towage" do not liii/a, 41 L. J. Ad. 39 ; The Aiina, 45 L. J. Ad. 98, 
 
 include a claim for damage by a towed A'essel o/ite, p. 103. As to the difference between a pro- 
 
 against her tug for misconduct. The Itobert ceeding in rem and a maritime lien; see ante, 
 
 Pow, 32 L. J. Ad. 164. p. 594, n. 
 
 (7/) Seea«Jf,p.99. Under this section the Court (?) The Admiralty Court had original jurisdic- 
 
 of Admiralty has jurisdiction to entertain a claim tion in the case of a collision on the high seas, 
 
 agamst a foi-eign ship to recover payments made Purlds \. Flovxr, 43 L. J. Q. B. 33. 
 to enable the master of the ship to supply her
 
 620 
 
 seamen's fund WINDING-tJP ACT, 
 
 Gaolers to 
 receive prisoners 
 committed by 
 the Court of 
 Admiralty or 
 l\v Admiralty 
 toroucrs. 
 
 Prisoners iu 
 contempt may be 
 discharged. 
 
 Jurisdiction to 
 try questions 
 concerning 
 booty of >\ar. 
 
 Jurisdiction of 
 Courts of Law 
 and Equity not 
 taken away. 
 
 19. [Eepcixled by 42 & 43 Vicl. c. 59.] 
 
 20. And be it enacted, that the keeper for the time being of every common gaol 
 or prison .shall be bound to receive and take into his custody all persons -who shall 
 be conunitted thereunto by the said Court of Admiralty, or who shall be com- 
 mitted thereunto by any coroner appointed by the judge of the said Court of 
 Admiralty, upon any inquest taken within or upon the high seas adjacent to the 
 county or other jurisdiction to -which such gaol or prison lielongs ; and every 
 keeper of any gaol or prison who shall refuse to receive into his custody any per- 
 son so comnutted, or wilfully or carelessly suffer such person to escape and go at 
 large without lawful warrant, shall be liable to the like penalties and conse- 
 ijuences as if such person had been committed to his custody by any other lawful 
 authority. 
 
 21. And be it enacted, tliat it shall be lawful for tha judge of the said High 
 Cotut of Admiralty to order the discharge of any person who shall be in custody 
 for contemi:it of the said court, for any cause other than for non-payment of money, 
 on such conditions as to the judge shall seem just : provided always, that the order 
 for such discharge shall not be deemed to have purged the original contempt in 
 case the conditions on which such order shall be made be not fultilled. 
 
 22. And be it enacted, that the said High Court of Admiralty shall have juris- 
 diction to decide all matters and questions concerning booty of war, or the distri- 
 bution thereof, which it shall please her Majesty, her heirs and successors, liy the 
 advice of her and their privy comicil, to refer to the judgment of the said couii; ; 
 and in all matters so referred the court shall proceed as in cases of prize of 
 war, and the judgment of the coiu-t therein shall be Ijinding rtpon all i^irties 
 concerned. 
 
 23. Provided always, and be it enacted, that nothing herein contained shall lie 
 deemed to preclude any of H. M.'s coiu'ts of law or equity now having jurisdiction 
 over the several subject-matters and causes of action hereinbefore mentioned 
 from continuing to exercise such jurisdiction as fully as if this Act had not been 
 passed. 
 
 14 & 15 Vict. c. I(t2. 
 
 An Ad to Amend the .ids rdating to the Mcrcluml Heamenh Fund, and to provide 
 for Windinfj iq) the said Fund, and for the better Management thereof in the 
 meantime. [August 8th, 1851.] 
 
 io Geo. 2, c. 38. 
 
 •1 &5 Will. 
 
 c. 52. 
 
 6 WiJl. 4. c. 15. 
 
 AVhereas an Act was passed in the 20th year of the reign of King G. the 2ud, 
 intituled, " An Act for the Relief and Support of maimed and disabled Seamen, 
 and the Widows and Cluldren of such as shall be killed, slain, or dro'^^■ned in the 
 Merchant SerA-ice :" and whereas another Act was passed in the session of the 4th 
 and 5th years of the reign of King W. the 4th, intituled " An Act to amend an 
 Act of the 20th year of his Majesty King G. the 2nd, for the relief and stipport of 
 sick, maimed, and disabled Seamen, and the "Widows and Cliildren of such as shall 
 be killed, slain, or drowned in the Merchant Ser^dce ; and for other piu'poses :" 
 and whereas another Act was passed in the 6th year of the reign of King 1V. 4th, 
 intituled " An Act to amend an Act of the 4th and 5th Years of his present 
 i\Iajesty, in order to enable certain Seanuni belonging to Shetland or Orkney to 
 pay certain Siuns of Money payable under that Act to the Seamen's Fund at 
 Lerwick in Shetland, or Kirkwall in Orkney :" and whereas the institution estab- 
 lished and carried on under the provisions of the said recited Acts, commonly 
 known by the name of the " Merchant Seamen's Fund," has been ascertained to be 
 inadequate for the purposes for which it was established, and can no longer be 
 carried on with benefit to British merchant seamen, and it is therefore expedient 
 that the said institution should be brought to an end, and that such provision
 
 14 & 15 VICT. c. 102. 621 
 
 should be made as liereinafter mentioned for winding up tlie affairs thereof, and 
 
 for satisfying tlie just demands of persons having daims upon the said fund : Be ^ _^^. . 
 
 it therefore enacted, &c., as follows ;— '" ' L ' 
 
 1. This Act may he cited as " The Seamen's Fund Winding-up Act, 1851." Short title. 
 
 2. The following words and expressions in this Act shall have the meanings Interpretation, 
 hereby assigned to them, if not inconsistent with tlie context or subject-matter; 
 
 (that is to say,) 
 
 The expression " United Kingdom" shall be taken to mean the United Kingdom United King- 
 of Great Britain and Ireland : '^"'^ = 
 
 The expression "Board of Trade" shall mean the committee of her Majesty's Boanl of Trade : 
 privy council appointed for the consideration of matters relating to trade and 
 foreign i:)lanta* Ions : 
 
 The expression " President and Governors" shall mean the president and President and 
 governors for the relief and support of sick, maimed, and disabled seamen, governors: 
 and of the ^^ddows and cliildren of such as shall be killed, slain, or drowned 
 in the merchant service, incorporated by the first of the said recited Acts : 
 
 The expression "the Fund" shall mean the Merchant Seamen's Fund : The fund : 
 
 The word " Ship " shall include every description ot vessel employed on the gi^jp. 
 high seas or on the coasts of the U. K., or in any port or creek of the same, 
 except boats exclusively employed in fishing on the coasts of the U. K., or 
 the islands of Guernsej^, .Jersey, Sark, Alderney, or j\Ian, and except vessels 
 employed exclusively in trading or going only from place to place within an}- 
 river of the U. K. 
 
 The expression "Home-trade Ship" shall include every ship included in the irome-trado 
 above definition, employed, in trading or going within the following limits ; *"'"!' • 
 (that is to say,) the coasts of the U. K., the islands of Guernsey, .Jersey, Sark, 
 Alderney and Man, and the continent of Europe between the river Elbe and 
 Brest, inclusive : 
 
 The expression "Foreign-going Sliip" shall iix elude every ship included in Foreign-going 
 the above definition, employed in trading or going beyond the limits afore- ^^"i' • 
 said : 
 
 The word " Owner," when applied to a ship, shall include all the persons, if Owner : 
 more than one, to whom the ship belongs ; 
 
 The word " Master"' shall include every person having command or charge of a srastor: 
 ship : 
 
 The word " Seaman" shall include every person (except masters, and appren- seaman, 
 tices duly indentured and registered) employed or engaged to serve in any 
 capacity on board any ship. 
 
 3. («) The following enactments, (that is to say,) so much of the said Act of the ^c'lausc'' 
 20 G. 2, c. 38, as enables the said president and governors to purchase lands and — '• 
 erect a hospital ; so much of the 4th, 16th, 19th, 20th, and 21st sects, of said Act Repeal of 
 
 5 W. 4, c. 52, as relates to the purchase by the said president and governors, or by mcnTs? '''"'' ' 
 cinj trustees at outports, of lands, tenements, or hereditaments ; so much of 16th, 
 19th, 20th, and 21st sections of the last-mentioned Act as relates to the appoint- 
 ment by any trustees at outjDorts of receivers of the fund, and to the collection of 
 duties ; the 2nd, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 17th, 22nd, 
 23rd, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32nd, 33rd, 34th and 35th sections 
 of the last-mentioned Act ; the Act of 6 W. 4, c. 15 ; and the 31st sect, of 8 Vict. 
 c. 112, shall be repealed, except as to any offences committed, or penalties, or lia- 
 bilities incurred, under any of the said enactments, before the passing of this Act. 
 
 4. The Board of Trade shall undertake the general suj)ervision of the business Board of Trade 
 of winding up the fund in manner hereinafter mentioned; [and the two persons Jj*^ ^"P"''°^^"Jj 
 nominated to assist such board in the execution of the Mercantile Marine Act, winding up the 
 1850, shall assist such board in the execution of this Act] (b) ; and such board ^md, 
 
 may, for the purpose of carrying this Act into execution, appoint such ofticers, 
 clerks, and servants, as it may deem necessary, and make use of the General 
 Register Office of Merchant Seamen, and may, if necessary for such purpose, 
 increase the number of persons employed there, and may appoint additional 
 
 («) See Stat, Law Rev, Act. 1S75. (/j) Part within brackets repealed bv Stat. Law 
 
 Rev. Act, 1875.
 
 622 
 
 seamen's fund WiNDIXG-UP ACT, 
 
 Agency for 
 
 Manaoinq thC 
 
 Fund. 
 
 Coiiioratioii ami 
 trustees nomi. 
 iiatcd imdci' 
 20 Goo. 2. c. 3S. 
 ami 4 &5 Will. 4. 
 c. 62. to continue 
 for canning this 
 Act into" effect. 
 No trustees to bo 
 appointed wliere 
 there liave 
 liitliorto not been 
 any. 
 
 In certain cases 
 Board of 
 Trade may sus- 
 pend the func- 
 tions of tlie 
 president and 
 governors or 
 iTustees. 
 
 Their functions 
 in that ca^e may 
 be undertaken 
 by Board of 
 Trade, or com- 
 mitted to local 
 maviue board. 
 
 Wlio to act as 
 roeeiTcrs. 
 
 Pcrsoas now 
 employed in 
 distributing 
 the relief, 
 &c., may be 
 continued, 
 with power 
 to Board of 
 Trade to 
 regulate 
 remuneration 
 and to dismiss 
 tlioni. 
 
 remuneration to any per.sons now employed there upon whom additional dutie- 
 are thrown by reason of this Act. 
 
 5. Tlie president and governor?, and the several l)oards of trustees nominated 
 under the provisions of the Act of tlie 20 CtCO. 2, c. 38, and of the Act of the 
 4 & 5 Will. 4, c. 52, or of either of sttch Acts, shall continue to exist, and to have 
 succession, or to be from time to time nominated, as provided by the said Acts, or 
 either of them, for such time and to such extent as are consistent witli the pro- 
 visions of this Act, and necessary for cari-yiug the same into effect ; and the said 
 president, and governor.s, and lioards of trustees (including the guild and ln-other- 
 hood of the master and pilots, seamen of the town and port of Kingston-tipon- 
 Hull, and the masters, wardens, and commonalty of merchant venturers of tlie 
 city of Bristol), shall continue to have and exercise .such of the powers granted to 
 them respectively by the said Acts, or either of them, as are consistent with the 
 provisions of this Act ; but no trustees shall be appointed at any outport at which 
 they have not been before the passing of this Act. 
 
 6. If the said president and governors, or any of the boards of trustees at out- 
 ports, fail to be duly chosen or constituted, or resign, or neglect or refuse to dis- 
 charge their duties in respect of the fund, or to obey any of the provisions of this 
 Act, or any regulations or orders lawfvdly issued in pursuance thereof, the Board 
 of Trade riiay,'^bv letter to be signed bj' one of the secretaries or assistant secre- 
 taries to .such board, declare the functions of the said president and governors, or 
 of any such board of trustees (as the case may be), in respect of the fund, to be 
 suspended, and the said corporation or board of trustees shall thereupon cease, so 
 long as such suspension contimies, to have any rights or powers in respect thereof, 
 and shall deliver all property and matters relating to the said fimd to the Board 
 of Trade, or as it directs ; but no such suspension shall relieve the said president 
 and governors, or any such board of trustees, from the obligation of making any 
 payments, transfers, deliveries, returns, accounts, or explanations which the Board 
 of Trade is hereby authorized to require. 
 
 7. In any case in wliich the functions of the said president and governors, or of 
 any of the boards of trustees of outports, are suspended as hereinbefore mentioned, 
 the Board of Trade may, in its discretion, either take into its own hands the 
 entire management of that portion of the fund ■v^•itll reference to which such func- 
 tions are suspended, or, if there is a local marme board at the port willing to 
 undertake the same, may commit the functions of the said president and governors, 
 or of such board of trustees (as the case may be), or any part of such fimctions, to 
 such local marine board, and may at any subsequent time, if it tliinks fit, resume 
 the same or any part thereof. 
 
 8. At each port the shipping masters («) appointed under the Mercantile Marine 
 Act, 1850, or such of the said sliipping masters (if more than one) as the Board of 
 Trade directs, shall be the receivers of such contributions to the fund from masters 
 and seamen as may be payable under the provisions hereinafter contained ; and in 
 the case of shipping ma.sters (a) appointed by a local marine board constituted 
 under the said last-mentioned Act, such board may, with the sanction of the Board 
 of Trade, and in other cases the Board of Trade may apjioiut any clerks or ser- 
 vants to assist tlie shipping masters (a) in the discharge of theu- duties as receivers ; 
 and the Board of Trade may sanction such remuneration (if any; as it may deem 
 necessary for the discharge of such duties. 
 
 9. The several persons now employed by the said president and governors or by 
 the said boards of trustees at outports in any duties other than the collection of the 
 duties payable under the .said Acts, shall, unless the Board of Trade otheiwiM' 
 directs, 1)e continued in such employment, so far as the same may be requisite for 
 the purposes of this Act ; but tlie Board of Trade may alter and regulate the 
 salaries or remuneration to be paid to such persons, and if it appears to such 1 loard 
 that their ser'\ices may be di.spensed with, may dismiss them, and may commit the 
 performance of their duties to the shi]iping masters (<y) above-mentioned, or to any 
 other persom whom it may appoint hn- tlie purpose ; and may also, in any cases 
 in which it appears to .such board just and proper so to do, grant to any person 
 so dismissed, and also to any persons now employed in the collection of diitie-. 
 
 {a) Now superintendents of mei-cantilc marine offices ; 25 & 26 Vict. c. 03, s. 15
 
 14 & 15 viOT. c, 102. 623 
 
 a fair and moderate compensation for any loss they may sustain by reason of tliis 
 Act. 
 
 10. Xo new officers or servants .shall 1)6 appointed to assist in the administration l^o new officer 
 of tlie fund, and no salaries or remuneration shall he granted, or expenses incurred, ^it^houSic-'^ 
 A\ithout the .sanction of the Board of Trade. tion. 
 
 11. The Board of Trade may require from all persons employed in the collec- Bo-ird of 
 tion or distribution of the fund such security for tlie performance of their duties ^pq^,\^i."c"ecu- 
 as it may consider expedient. rity from au 
 
 12. All salaries, remunerations, and compensations hereby authorized shall be officers, 
 first sulmiitted to the commissioners of H. ]\I.'s treasury, for their approval. to^be'ap-"^'''' 
 
 13. All salaries, remunerations, and wages, payable to any 'persons employed in proved by 
 the administration of the fund, and all expenses incun-ed in respect thereof, shall Treasury. 
 
 be defrayed out of the general fund hereinafter mentioned ; and all disbursements ■^'^^ ^" ^^ ^^^^'^' 
 
 on account of the fund shall be made through the hands of the officers appointed 
 
 for that purpose, and shall not be made by any other person or in any other 
 
 manner. Sonrces and 
 
 14. All moneys and property, whether real or personal, forming part of or ^'"'jj^f/,'^" ^'■^ 
 
 belonging to the Merchant Seamen's Fund, or any branch thereof, as well capital " 
 
 stock, land, and securities, as yearly revenue and cash, and all moneys arising from 9™?™^ 
 rontriliutions, or otherwise accruing to the said fund, .shall form one general fund fo"mcd. ^° 
 for the purpose of meeting the various expenses hereby authorized. 
 
 15. [Repealed by Stat. Law Rev. Act, 1875.] 
 
 16. If the president and governors, or any such board of trustees as aforesaid of Property held 
 the fund, liave in their possession or power, as triistees of the fund, any moneys or J'||J^JJ^''|^^f]^^ 
 otlier property, either real or j^ersonal, held upon trusts for .special or local piu-- retained or 
 poses, distinct from the general purposes of the fund at the port, they shall, so transferred to 
 long as they continue to act as administrators of the fund, apply such moneys and as the case may 
 property upon the trusts and for the jmrposes upon and for which the same ought, require, 
 according to law, to be applied, and if tliey cease to act as administrators of the 
 
 funds, shall, upon being rec^uired so to do liy the Board of Trade, pay and transfer 
 snch last-mentioned moneys and property to such new trustees as the Board of 
 Trade appoints for the piu-pose ; and whenever any subsequent ai^pointment of 
 new trustees of such moneys and property is rendered necessary by death, resigna- 
 tion, or otherwise, the Board of Trade shall make the same, and such moneys and 
 property shall be paid over, and transferred to the new trustees, so appointed from 
 time to time, as occasion requires ; and all such new trustees as aforesaid shall 
 hold and administer all moneys and property so paid and transferred upon the 
 trusts and for the purposes last aforesaid. 
 
 17. If in any case a question arises whether any moneys and property in the Provision for 
 possession or power of the said iiresident and governors or trustees are, under the arrangement^ 
 provisions herein contained, applicable to the general purposes of the fund, or ' ' ° ' 
 
 to such special or local purposes as aforesaid, and any arrangement for settling 
 such question is agreed to by such president, or governors, or trustees (as 
 the case may be), and is approved of by the Board of Trade as a fair and 
 proper arrangement, such moneys or property shall l)e applied in pursuance 
 of such arrangement, and such application shall not be deemed to be a breach of 
 trust. 
 
 18. Immediately after the passing of this Act, or as soon as possible afterwards. President, and 
 the president and governors, and the several existing boards of trustees, shall fni9*t(S3 Vo 'give 
 render to the Board of Trade such account as it requires of all the mone3^s, stocks, accouuts ; 
 securities, and property, whether real or personal, in their respective possession or 
 
 power as trustees or managers of the fund, and shall distinguish such as are held 
 
 for special or local piu'poses from such as are applicable for the general purposes 
 
 of the fund, and shall specify the nature of such trusts, and shall, if required, 
 
 deliver to the said commissioners all documents relating to any of such moneys, 
 
 stock, securities, and property ; and, notwithstanding anything herein contained, and deliyer 
 
 the said president, and governors, and boards of trustees shall, until the com- documents ; 
 
 pletion of the transfers, payments, accounts, returns, and deliveries, which 
 
 are directed by this Act, or which the Board of Trade is hereby authorized to gxist^fo/tl o 
 
 require, continue to have such powers as may be necessary in order to effect the purposes of 
 
 same. " conveyance. 
 
 19. Every payment and transfer duly made as aforesaid shall be effectual iix the &c^o™e\ai'd
 
 624 
 
 SEAMEN S FUND "WINDING-UP ACT, 
 
 but not to 
 operate as 
 release from 
 breach of 
 tnist, 
 
 No compiil- 
 pory coniri- 
 butions. 
 
 No one who 
 has not con- 
 tributed to bo 
 allowed to. 
 Those wlio 
 have contri- 
 buted to bo 
 allowed to 
 contribute. 
 
 Rate and mode 
 of voluntary 
 contribution 
 for men dis- 
 charged before 
 a superintendent 
 
 marine office 
 aceordinfir to 
 IS & 14 Vict, 
 c. 93, s. i)6, 
 
 law, and .shall relieve the parties making tlie same from all liability in respect of 
 any subsequent application of the moneys and property so paid or transferred ; 
 but nothing herein contained shall operate to release any person or corporate body 
 from any liability arising from any breach of trust previously committed liy such 
 person or body. 
 
 20. After the passing of this Act no master or seaman shall be compelled to pay 
 any duty or contribution to the fund. [The rest of this section is repealed by 
 Stat. Law Rev. Act, 1875.] 
 
 21. Xo master or seaman who has not contributed to the fimd before the pass- 
 ing of this Act shall be allowed to contribute thereto, or to establish any claim for 
 a iiension or other relief for himself or for his wife or children. 
 
 22. All masters and seamen Avho, before the passing of this Act, have contri- 
 buted to the fund shall be allowed to continue to contribute thereto in manner 
 hereinafter mentioned, and shall, in respect of their contributions, be entitled to 
 relief in the manner and subject to the conditioiLS hereinafter mentioned. 
 
 23. [Repealed by Stat. Law Rev. Act, 187 5.] 
 
 24. In the case of masters who discharge their crews before a shipping master («), 
 under the pro\iisions of the Mercantile Marine Act, 1850, and of seamen who are 
 so discharged, such voluntary contiibutions sliall be as follows ; (that is to say,) 
 every master shall jiay two shillings, and every seaman one shilling, for eacli 
 
 of a mercantile calendar month of service, and the same respective sums for any further number 
 of days of service exceeding 20, and one half of such respective sums for anv 
 further number of days of service exceeding 10 and not exceeding 20, and one- 
 third of such respective sums for any further number of days not exceeding 10 
 (such further number of days to be reckoned as one month, one-half month, and 
 one-third of a month respectively) ; and such service shall, in the case of masters 
 and seamen respectively, be reckoned from the day of their respectively signing 
 the agreement to the day of their discharge inclusive ; and such voluntary con- 
 tributions shall be paid to such shipping master (a) as aforesaid at the time of tlie 
 discharge. 
 
 25. In the case of masters and seamen who do not attend before a slupping 
 master (a) for the piu^^ose of discharge, such voluntary contributions as aforesaid 
 shall be paid after the rate and in the manner following ; (that is to say,) 16 shillings 
 shall be deemed to be the yearly contribution for a master, and 8 shillings the 
 
 superintendent 3'6''ii'ly contribution for a seaman, and so on in proportion for any shorter peiiodJ 
 of a mercantile and such sums shall be deemed to lie j^ayable cpiarterl^' in advance ; and each! 
 master and seaman who wishes to contribute shall from time to time attend before] 
 some shipping master (a) at stated periods to be appointed for tlie purpose by the! 
 Board of Trade, and shall then pay to hiui such proportion of his yearly contribu-| 
 tion as he may tliink fit, so nevertheless that each such payment made at one time] 
 be either 2 shillings or some multiple of 2 shillings. 
 
 26. In the case of seamen who enter the royal navy, and who desire to continue] 
 their contributions to the fund, such contributions .shall be according to the rate' 
 hereinbefore fixed for the case of seamen who are not discharged before a shipping 
 master (a), and shall be paid in such manner as the Board of Trade directs. 
 
 27. [Repealed bv 16 & 17 Vict. c. 131, s. 25.] 
 
 28. [Repealed by 16 & 17 Vict. c. 131, s. 25.] 
 [The intermediate sections are repealed bv 17 & 18 Vict. c. 120.] 
 
 39. [Repealed bv Stat. Law Rev. Act, 1875.] 
 
 40. [Repealed by Stat. Law Rev. Act, 1875.] 
 
 41. Subject to the pro\ision lastly hereinbefore contained, everj' person, of J 
 whatever age or sex, to whom any jjension is duly granted before such time as last j 
 aforesaid, shall continue to receive such pension. 
 
 42. After the time last aforesaid no pensions shall be granted, except to' 
 masters and seamen, or to the -widows and chikben of masters and seamen, wlio 
 have contributed to the fund for an aggregate period of 60 months ; such contri- 
 butions to have been made either altogether before the passing of this Act in the 
 manner directed by the said recited Acts, or partly before that time in such inamier 
 
 Rate and mode 
 of voluntaiy 
 contribution 
 for men not 
 discharged 
 before a 
 
 marine office. 
 
 Provision for 
 the case of 
 men enteiing 
 the navv. 
 
 Present pen- 
 sions not to be 
 diminished. 
 
 No seamen 
 to earn pen- 
 sions unless 
 they conti-i. 
 bute for five 
 years. 
 
 <■<') Now a superintendent of a mercamile maiine office ; 25 & 2C Yict, c. 63 s. 15.
 
 U & 15 VICT. c. 102. 625 
 
 as last aforesaid, and partly after the time to be fixed for the commencement of 
 future contributions in tlie manner hereinbefore provided in that l^ehalf. 
 
 43. Any seaman Avho after the time to be fixed for the commencement of future Failayo to 
 contributions, and before the termination of his last service at sea, ceases altogether forWiree" 
 for a continuous lu-riod of three years to pay his contribution to the fund, shall years to be 
 forfeit all claim to any relief for himself, his widow, and children. meut oniKht 
 
 44. Subject as hereinbefore provided, such pensions and allowances as hereinafter to relief, 
 mentioned may be granted to any master or seaman who is rendered incapable of Pd-sons 
 service by sickness, wounds, or other accidental misfortunes, or Avho becomes who arc to 
 decrepit or worn out by age ; and also to the widow and children of any master ppif °on'f'^ *° 
 or seaman who is killed or drowned in the merchant service ; and also to the 
 
 widow and children of any master or seaman who has contributed for twenty- 
 one years to the fund, or who is at the time of his death receiving or entitled to 
 receive a pension : Provided, in the case of such last-mentioned widow, that she 
 was married to such master or seaman before he became entitled to relief, and, in 
 the case of such last-mentioned children, that they are imder the age of 14 years, 
 or are from infirmity incapalile of getting a livelihood. 
 
 45. [The Board of Trade shall take such steps as it inay tliink necessary for the Ponsions to 
 purpose of collecting from the various rates of pension granted at the several ])orts uniform scale, 
 in the United Kingdom during the five years preceding the first day of January, acconimg Xi> 
 one thousand eight hundred and fifty-one, one a^-erage rate of pension for masters, f^f p^senT*' 
 seamen, widows, and children respectively, and shall frame and issue one uniform pensions, 
 scale of pensions to be, so far as possible, in accordance with such average rate, and 
 
 to be uniform for all ports in the United Kingdom ; and] (b) all grants of pensions 
 made after the time to be fixed as aforesaid for commencing grants of pensions 
 to be made in pursuance of this Act shall be in conformity with such scale as the 
 Board of Trade shall issue for that piu'pose. 
 
 46. The rate of pensions for masters, and for the widows and children of masters, Rate of Masters' 
 shall be twice the amount of pensions for seamen, and for the widows and children i*eii>^i'^ii'" 
 
 of seamen respectively, 
 
 47. Provided, that in any case or class of cases in which it appears to the Board i^'^;'^'^;'^ °^ 
 
 of Trade desirable so to do, such board may commute any pension upon such terms cnmmiuo pen- 
 as it thinks fit, and may also, as regards relief to widows and chiklren, suljstitute sions and 
 gratuities for annual pensions, such gratuities to bear a fair proportion to the fo^^ifiows"'*'* 
 annual pension which would otherwise have been granted. 
 
 48. The ac'L'refrate number of pensions or gratuities to be granted at any iDort to Aggregate 
 
 oo o . , t ° .- ^ • in 4- number of 
 
 masters, seamen, widows, and cluldren respectively, m any one year, snail not pensions in 
 
 exceed the average yearly number of pensions granted at such port to the same each port not 
 
 classes of pensioners respectively during the 5 years preceding the 1st day of a'venioTof 
 
 January, 1851, except in any case in which the Board of Trade otherwise directs ; last 5 years. 
 
 and in granting pensions, care shall be taken that of seamen who are worn out or Those who 
 
 decrepit by age those who have been longest in the sexTice, and have contributed {jutccUon^c'^c 
 
 . most to the fund, shall be first provided for. to be flrst° 
 
 49. All acts done by any master or seaman for the purpose of charging I'l'ovicied for. 
 or alienating the whole or any part of his pension shall be absolutely null and Pensions to be 
 void. 
 
 50. Subject to the provisions hereinbefore contained, the Board of Trade may Bcara of 
 determine and regulate the principles and conditions upon which and the manner ^eit'uiate'^he 
 in which pensions or other relief are to Ije granted under this Act ; [and the said right to relief, 
 president and governors, and all boards of trustees, or other local aclministrators of ^'uj^^fp*^^ "g^. 
 the fund, shall exercise any powers of granting pensions or other relief wliich may tioned. 
 
 be vested in them in accordance with any regulations issued for that purpose by 
 the Board of Trade in pui'suance of this Act] (b). 
 
 51. [Repealed l)y 16 & 17 Vict. c. 131, s. 25.] 
 
 52. In London and in the outports under the management of the said president j)-'^{%^fS/ 
 
 and governors, such president and governors, unless suspended as hereinbefore 
 
 mentioned, and their officers, shall undertake the duty of ascertaining the persons President, 
 who, under the provisions hereinbefore contained, or any regulations made in pur- fJJJj} mistccs'^"''' 
 suance thereof, are entitled to relief, and in outports having boards of trustees, unless sus- 
 
 {h) The part within brackets is repealed by Stat. Law Rev. Act, 187-5. 
 2,S
 
 G20 
 
 SKAMEN S ITND UlNDIXd-li? ACT. 
 
 relief. 
 
 Board of 
 Trade to 
 make regula- 
 tions as to 
 applications 
 for pensions. 
 
 Certificates 
 to be exempt 
 from stamp 
 duty and 
 from fees to 
 consuls. 
 
 Punishment 
 for forgery 
 and pcrsona- 
 tion. 
 
 Accounts and 
 lietnnis. 
 
 Accountant 
 for purposes 
 of Act. 
 
 Persons 
 engaged in 
 administering 
 the funds to 
 make returns 
 to Board 
 of Trade. 
 
 General 
 return to be 
 made, and 
 laid before 
 Parliament. 
 
 sueli tinistoc'S and tliiir olHouis, unlt'ss su.^poiulodas afore.^aiil, sliall nudcvtakc sucli 
 duty ; and iu case of anj' such suspension as aforesaid tlie local marine hoard of 
 the port, if appointed to act in administering the fund under tlie powers herein- 
 before contained, or such persons as tlie Board of Trade may appoint for that pur- 
 pose, shall undertake such duty ; and if in any case it appears to the Board of 
 Trade that any pension or other relief is granted or refused in a manner incon- 
 sistent -with the provisions of this Act, or with any regulations issued by virtue of 
 powers herein contained, the Board of Trade may disallow such gi'ant or refusal, 
 and either withhold, grant, or alter the relief, as the case may require. 
 
 53. The Board of Trade may make regulations as to the times and places at 
 which and tlie manner in which applications for pensions or other relief are to be 
 made, and as to the evidence to be required, and may also, subject to the express 
 ju'ovisions herein contained, make regulations as to the time, place, and manner of 
 distributing the same. 
 
 54. All certificates, receipts, or other documents used by or under the directions 
 of the Board of Trade in carrying the provisions of this Act into execution shall 
 be exempt from stamp duty, and any certificates or other documents which may be 
 required from any consul or vice-consul for the purpose of proving claims to pen- 
 sions or other relief under this Act shall be given by him without fee. 
 
 55. Every person who, for the purjiose of obtaining, either for himself, or for 
 another, any pension, pajanent, or relief from the fund, fraudulently forges or 
 alters, or procures to be forged or altered, or assists in forging or altering, any cer- 
 tificate or other document purporting to show or assist in showing a right to such 
 pension, payment or lelief, and every person who for the prirpose aforesaid 
 fraudulently makes use of any forged or altered certificate or other such document 
 as aforesaid, or any certificate or other such document as aforesaid not belonging 
 to him, or who for the purpose aforesaid gives or makes, or procures to 1 le given or 
 made, or assists in giving or procuring to be given or made, any false evidence or 
 representation, kno^^ ing the same to be false, shall be punishable with transporta- 
 tion for seven years, or may be summarily prosecuted before two or more justices, 
 or in Scotland before two or more justices or the sherift', and punished upon 
 conviction by imprisonment for a period not exceeding six months, with or with- 
 out liaid labour. 
 
 56. [Repealed by IC & 17 Vict. c. 131, s. 25.] 
 
 57. The person appointed for the time being to act as accountant to the Board 
 of Trade in carrying into eft'ect the provisions of this Act, shall be the person who 
 is to render the accounts of that board under this Act to the commissioners of 
 audit, or other persons undertaking the audit thereof. 
 
 58. The president and governors, and all boards of trustees or other persons 
 engaged in the administration of the fund, shall keep their accounts in such 
 manner as the Board of Trade directs, and shall also from time to time give 
 to the Board of Trade such returns and account.s, and explanations in respect 
 of all matters relating to the fund, whether past, present, or future, as it may 
 require. 
 
 59. On or before the 1st day of March, in every year [after the year 1852](('), tlie 
 Board of Trade shall cause to be made out a report for the jiast year, in such form 
 as they may think fit, containing the foll(n\'ing particulars : — 
 
 (1.) The total amount of receipts and dislnirsements for tlie year, under their 
 several heads : 
 
 (2.) The total amount of money in liand at the end of the preceding year, 
 including the balance at the liank of England, and any sums wliich'mav 
 be outstanding in the hands of receivers : 
 
 (3.) The total amount of tlie capital l»elonging to tlie fund, with the several 
 investments thereof, distinguishing such capital as is still outstanding, and 
 such debts and investments as are considered bad or doubtful : 
 
 (4.) The nmnber of pensioners, distinguishing between men, women, and chil- 
 dren, and between different scales of pension, and the total amount of 
 pensions in each class : 
 
 <rt) The part within brackets is repealed by Stat. Law Eev. Act, 187.j.
 
 PTLOTAGb] AHT, IG & 17 vmT. (!. 129. C27 
 
 (5.) Tlic muul)er and aiuount of the wliole of the pensions, and of each clasis of 
 
 pensions, granted in the year : 
 (6.) The number and amount of the whole of the pensions, and of each class of 
 
 pensions, expired in the year : 
 (7.) The amount of salaries and expenses of management : 
 (8.) A statement of the money and securities applicable to private trusts, with a 
 general account of the nature of the trusts, and of the income and expen- 
 diture in respect thereof : 
 And such other particulars as the Board of Trade may deem expedient : 
 And such report shall be laid before each house of parliament in the month of 
 March in every year, if parliament is then sitting, or, if not, within one mouth 
 after the next meeting thereof. 
 
 60. All notices publislied in the London Ga::ette, and purporting to be notices Leoai 
 or copies of any orders or regulations issued l.)y the Board of Trade in pursuance Pfoceedini/^, 
 of this Act, shall be taken as evidence ot such orders or regulations, witliout oniorsT^., 
 further proof. pubiishc.i ili 
 
 '■ Oazptte 10 bo 
 
 [Section 61 is repealed by 17 & 18 Vict. c. 120.] 
 
 evidence. 
 
 No. VIII. 
 
 16 & 17 Vict. c. 129. 
 
 An Ad ftirther to amend the Law relating to Pilotage. 
 
 [20th August, 1853.] 
 
 Whereas it is expedient that the right of piloting ships outwards from tlie port 
 of London, and the right of piloting ships inwards to the same port, should be 
 vested in one body of pilots, and tliat such j^ilots should be subject to iiniform 
 authority and control : be it enacted, &c., as follows : 
 
 1. So much of the Act of the 6 Geo. 4, c. 125, as relates to the society or fellow- Union of 
 
 ship of the Trinity House of Dover, Deal, and the Isle of Thanet, or to the pilots '^?,Z%ifqHrf 
 
 of the said society or fellowship, commonly called the Oinque Port Pilots, and the Port ruoix. 
 
 whole of the Act of the 9 Geo. 4, c. 8(), shall be repealed, save as hereinafter- .■ V~c 
 ^ . T ' ' J- ' So mucli of 
 
 inentionetl. c G. 4, c. ia.5, as 
 
 2. (&). relates to Cinquo 
 
 3. All Ciufpie Port pilots duly licensed and authorized before this Act comes qc}\^4'V\^';:_''"'^ 
 into operation to pilot any vessels from Dungeness or the Downs up the rivers roiieaied. 
 Thames or JMedway, shall [notwithstanding the rejieal and enactment hereinbefore Present Cinque 
 contained] (c), be authorized to pilot the like vessels within the same limits and in ^"I'i* efp"!^/"''" 
 the same manner within and in which they might have lawfully piloted the same puot vessels* 
 before the passing of this Act according to the terms of their existing licences, and eitiicr inwards 
 sliall also l)y virtue of sucli existing licences (without any licence from the Trinity witWiHUe^hniis 
 House in that belialf) be atithorized to pilot the like vessels down the said rivers for wiuch they 
 Tliames and Medway, or from those rivers to the Downs or Dungeness, or from j'/cg,"^^' 
 
 the west end ot the Owers to the south buoy of tlie Brake, within the limits 
 witliin which such existing licences authorize them to act in piloting strch vessels 
 from the Downs to the said rivers, and up the same, or from the south buoy of the 
 Brake to the west end of the Owers ; and it shall be lawful for the Trinity House 
 by a supplemental licence to autliorize any such Cinque Port pilot to pilot any 
 vessels in any parts of the rivers Thames and Medway or in any of the seas or 
 channels leading to or from such rivers to which his existing licence may not ex- 
 tend, after examination in respect of the further limits within which he is to be so 
 
 {h) Repealed by 17 & 18 Yict. c. 120. post. (c) The parts within bracket- are repealed by 
 
 Stat. Law Rev. Act. 1875. 
 2 S 2
 
 628 
 
 riLOTA( ; K -VC'l' 
 
 Tho abovc- 
 moiitiimcil 
 ('iiK|Uc Port 
 ]iilot 
 
 pilots. 
 
 Present Trinity 
 House pilots 
 may viilot ships 
 inwanls within 
 the limits of 
 their licen<c=. 
 
 liconsed to act, aitd upon tlio payment of siieli fee, If any, as the said Trinity 
 House univ, witli the consent of" the Board of Trade, appoint fur that purpose ; 
 and such supplemental licence shall be taken to he part of and to be held upon 
 the same conditions and subject to the same regulations in all respects as such 
 existing licence. 
 
 4. The said Cinrpe Port pilots who have been so licensed as aforesaid before 
 this Act comes into operation shall lie sul\ject to all the provisions of the saidAct 
 
 be snb- of the G Geo. 4, c. 125, and of any other Act now in force, which relates to pilots 
 jeri to the same licensed by tlie Trinitv House (except such of them as are contained in the 4th 
 Trhmy House sect, of the said Act of the C Geo. 4), and shall lilvemse be subject to the govern- 
 ment and regulations of the Trinity House, and to all byelaws, rttles, oi-ders, or 
 ordinances duly issued by it for the*^ purpose of insuring the good conduct and 
 constant attendance of pilots upon their duty, and to such penalties as may be 
 <luly annexed to the breach of the said regulations, byelaws, rules, orders, or 
 ordinances, in the same manner and to the same extent in aird to which pilots 
 licensed by the said Trinity House are subject thereto. 
 
 5. All pilots licensed before this Act comes into operation by the said Trinity 
 House to pilot any vessels upon the rivers Thames and Medway, or from London 
 Bridge to the Downs, or from the Isle of Wiglit to London Bridge, shall be autho- 
 rized to pilot the like vessels from or by Dungeness np the rivers Thames and 
 Z^Iedway, and from the south Ijuoy of the Brake to the westward to the end of the 
 OwerSj'or within such or so mucli of the said limits as under their present licences 
 they might act within in piloting such vessels down the said rivers or outwards or 
 to the westward: Pro^'ided always, that nothing herein contained shall be deemed 
 to confer any privilege of piloting above Gravesend and Stangate Creek respec- 
 tively upon any pilots by whatever authority they may be licensed, except witli 
 the concurrence uf tlie Trinitv House in the case of each pilot. 
 
 6. («). 
 
 7. (a). 
 
 8. Until any such alteration as hereinafter provided for be made, the rates and 
 prices to lie demanded and received by all pilots performing the duties hitherto 
 perfin-med by Cincjue Port pilots shall be sucli rates and prices as have imme- 
 diately before tliis Act comes into operation been lawfully demanded and received 
 by such last-mentioned pilots ; and it shall lie lawful for the said Trinity House 
 to increase, reduce, alter, or modify all or any of the said rates or prices, or to sub- 
 stitute other rates or prices in lieu thereof, with the same consent, in the same 
 mamter, ami subject to the same conditions with, in, and subject to which tlie - 
 Trinity House is empowered to increase, reduce, alter, and modify the rates and 
 prices to be demanded and received by pilots licensed liy it, or to substitute other 
 rates and prices in lieu of such last-mentioned rates and prices, but so that in no 
 case shall any higher rate be imposed or demanded than might have been imposed 
 or demanded if this Act had not passed. 
 
 9. All rates and prices, which may be lawfully demanded or received by the 
 ^'^i*^!^ Cinque Port pilots licensed before this Act comes into operation, or by au}' 
 
 remedies for the other pilots licensed by or nnder the government of the Trinitj' Honse, sliall be 
 
 recovery of rates i-ecoverable in the same manner in which rates and prices lawfully demanded or 
 
 pilots."' ^ "^"^^ received by pilots licensed by the Trinity House under the said Act of the 
 
 Bates on foreign 6 Geo. 4, are l)y that Act made recoverable ; and all rates or prices which may be 
 
 vessels eiaimiiig lawfully demanded or received by any pilots under the government of the said 
 
 proci'rv'treat7es. Trinity House for the pilotage of foreign vessels, the o\vners, masters, agents, or 
 
 ■ ' ' consignees of which claim, by virtue of any treaty of reciprocity, to be entitled to 
 
 the privileges of British vessels, shall be recoverable from the same persons, in the 
 
 same manner, and subject to the same conditions from whom and in and subject 
 
 to which pilotage rates on British vessels are recoverable nnder the 44th and 45th 
 
 sections of the said Act (li). 
 
 Property of 10. All jn'operty of every kind, whether real or personal, which may belong to 
 
 society of Cinriue ^^j, ^^^ jj,],! i^y the court of Loadiuanage or the said society of Cinque Port Pilots. 
 
 Port pilots to bo '^ ' .' o • X 
 
 transferred to 
 
 Tiinltv House. — — ■ 
 
 Rates to be 
 demanded for 
 duties hitheno 
 ]ierforraed hy 
 Cinriue Pciri 
 pilots. 
 
 Existing Cinque 
 PoiT pilots to 
 have same 
 
 (n) Repealed by 17 & 18 Vict. c. 120. po.-</. 
 Ill) This sectioii is repealed, except so much of 
 it as relates to the recovery of pilotage rates by 
 
 Cinque Port pilots licensed before the Act eanie 
 into operation. f?ec 17 & 18 Vict. c. 120. 2^0$'.
 
 IG & 17 VICT. 0. 129. 629 
 
 or any bmncli tlieruof, or any officer oJ:' the said .society, or any other person as 
 tiustce for the said societj", or any branch thereof, or which may he legally 
 aj^plicaljle for the beneht of the said society or of the inenil:)ers thereoi, or for any 
 purposes connected with pilotage (including a piece of land near Dover which was 
 )iy indentures of lease and release, dated respectively the 16th and 17th days of 
 August, 1726, conveyed to trustees therein named, upon certain trusts, for the 
 poor of the Trinity House of Dover), shall, upon the passing of this Act, belong to 
 and become vested in the Trinity Hoilse of Deptford Stroud ; and the said Trinity 
 House shall have power to sell the same or any part thereof as occasion may 
 rerpiire, and to give full discharges for the pia-chase money of any part thereof paymcutlo 
 "which may be sold ; and all luonies which if this Act had not passed would have t^inquc Port 
 been paid for any purpose connected with the relief or benefit of Cinrpie Port ii^ J^,^!^^]^ j'gj|^.[,',' 
 ^lilots, their appointees, Avidows, or issue, either in respect of surplus duties on t'orcli to the 
 foreign vessels, or by way of fees or contributions from Cinf|ue Port pilots licensed Trinity House, 
 before this Act comes into operation, and all sitms whicli would if this Act had 
 not passed been payable by such pilots as Trinity money or clerks' fees, and all 
 penalties or fines jDayable by or in respect of such pilots, shall, save as such con- 
 tril)utions. Trinity money, or clerks fees may be varied or rerxiitted itnder the 
 regulations to be made and approved as hereinafter mentioned, and save also such 
 of the said coirtributions as may cease by reason of any such purchases or commu- 
 tations of claims as hereinafter provided for, be paid to the Trinity House, and the 
 said property and monies shall he carried to and form part of the pilotage funds 
 of the Trinity House. 
 
 11. The said Trinity House shall, out of their said pilotage fund, pay all debts. Trinity House 
 if any, lawfully and projjerly incurred by the said court of Loadmanage before to settle Ihe'''^" 
 this Act comes into operation, and also such compensation or superannuation claims of persons 
 allowances (if any) as the Board of Trade may in its discretion allow to any of^^cUe/ aucToc 
 persons now in the employ or service of the court of Loadmanage, or of the lord cxistiug'ciuiiuo 
 warden of the Cinque Ports, or of the Society of Cinque Port Pilots, who may be r^i't pilots. 
 deprived of salaries or emoluments by reason of the passing of this Act, so that no 
 
 such compensation or superannuation allowance shall exceed the proportion of 
 salary or emoluments wliicli might be granted under similar circumstances to a 
 X>erson in the public civil service under the Act of the 4 & 5 Will. 4, c. 24 ; and 
 may in the next place, subject to the regulations to be made and approved as 
 hereinafter mentioned, either purchase out of tire said funds the claims of all or 
 any of the persons avIio, but for the passing of this Act, Avould have l:)een in the 
 receipt of pensions or other relief either out of the said Cinque Port Pilots' Fund, 
 or turder any byehxAA's of the said society now in force, or who liaA'e already paid 
 Avidows dues, or have otherAvise contrilDUted to the relief of superannuated Cinque 
 Port pilots, or of the AvidoAvs, appointees, or issue of Cinque Port pilots, such pur- 
 chases to be made upon such ternrs as may be determined by the said regulations, 
 or may, subject as aforesaid, continue to pay out of the said funds pensions, or 
 other relief to all or any of the persons avIio might if this Act had not passed liaA'e 
 received the same out of the said funds, or under any byelaAVS of the said society 
 now in force, such pensions or other relief to be of such amotmt as may be deter- 
 mined by the said regulations to be made and approA'ed as hereinafter mentioned; Trinity House 
 and the Trinity House may, subject to such regulations, make arrangements for existiu'g ttaqnc 
 enabling any person Avho, but for the passing of this Act, Avould be entitled to a I'ori pUots to 
 pension or other relief under the byehiAvs of the said Society of Cinque Port Pilots •^'t^^.'^.ijf'"-, ■,'•','., 
 noAV in force, or any Cinque Port pilot licensed before this Act comes into opera- Trinity House 
 tion, to purchase an interest in the said Trinity House Pilots' Fund ; and the terms Pilots' Fuud. 
 of such purchase, including the amoirnt and natttre of sttch interest, and the con- 
 sideration payable for the same, shall be determined by such regulations as afore- 
 said ; and every Cinque Port pilot aa-Iio chooses to make such purchase shall 
 thereafter pay to the said Trinity House the same contributions, Avhether l^y Avay 
 of poundage or otherAvise, as are for the time being payable by pilots licensed by 
 the Trinity House. 
 
 12. The said Trinity House shall also out of their said pilotage funds pay all As to charges ou 
 such superamiuation alloAvances or other relief to pilots licensed by them Ijefore p'/otage Fim!i, 
 this Act conies into operation, or to the AvidoAVS and children of such pilots, as and its future ' 
 might have been payalilc by the said Trinity House it this Act had not passed ; u^uagement. 
 and, subject to the charges aforesaid, the said Trinity House Pilotsi' I'luid shall be
 
 630 PILOTAGE ACT, 16 & J 7 VICT. c. 129. 
 
 cliai'gealjle in the first instance -with such expenses as the said Tiinity House may 
 duly incur in the perfonnance of its duties in respect of pilots and pilotage, so 
 nevertheless that no superannuation allowance to any person in the employ of the 
 said Trinity House -which is included in such expenses shall exceed the proportion 
 of his salary, which might be granted under similar circumstances to a jierson in 
 the public civil service under the Act of the 4 & 5 WiD. 4, c. 24, or under any 
 other Act for regulating such sui^eramimition allowances for the time being in 
 force ; and, subject thereto, the said Trinity House Pilots' Fund shall be adminis- 
 tered by the said Trinity House for the benefit of such pUots licensed by the said 
 Trinity House after this Act comes into operation as are incapacitated for the 
 performance of their duty liy reason of age, infirmity, or accident, and of tlie 
 ■widows and children of pilots so licensed, or of such incapacitated pilots only, 
 upon such conditions and under such regulations as the said Trinity House, with 
 the consent of the Board of Trade, may think fit to adopt ; and if it appears to the 
 said Trinity House that the contributions for the time being payable to the said 
 Trinity House Pilots' Fund are insufficient to enable them to grant alloAvances of 
 proper and adec^uate amount, it shall be lawful for the said Trinity House, with 
 such consent and subject to such regulations as aforesaid, from time to time to 
 increase and alter the amount of the annual contribution, or of the poundage upon 
 the sums earned by pilots, Avhich under the 4th section of the said Act of the 
 6 Geo. 4, c. 125, pilots licensed by the said Trinity House are required to pay to 
 the said pUotage fund. 
 S'?e"upon'"°" ^^- -^^"l whereas it is intended that Cinque Port pilots Hcensed before tliis 
 viiich claims of Act comes into operation, their widows and appointees, shall, as a body, receive 
 piots'amo be ^"^'■^*^^' ^^^^ provisions hereinbefore contained, benefits equal in amount to the 
 settled. '' benefits which they might lawfully and properly have received out of the several 
 funds and payments so transferred to the Trinity House as aforesaid if this Act 
 had not passed : and whereas it has been estimated that the funds and paj-- 
 ments so transferred, including the principal as well as the interest of the said 
 funds, would, if duly applied, be sufficient to carry the said intention into 
 effect ; but in consequence of the numerous contingencies involved it is impos- 
 sible to calculate with certainty the amount which Avill be necessary for that 
 purpose, or to determine with precision the manner in which such amount shall 
 be applied, and it is therefore expedient that all due claims of the said Cinque 
 Port pilots, their widows, appointees, and issue, should be provided for by the 
 said Trinity House out of their general pilotage fund as hereinbefore provided, 
 and that the Board of Trade and the Trinity House should be entrusted with 
 such poAvers as are necessary for settling the said claims, and for carrying into 
 wth'-^n^^Tof ^'^^^'* ^^^ l)rovisions hereinbefore contained in respect thereof: be it enacted, 
 Board of Ti-ade, tl'fit for the piupose of carrying the said intention and pro\"isions into eft'ect 
 may make icga- the said Trinity House may, with the appproval of the Board of Trade, from time 
 !4ttiinytlic *° t^^"*^ make regulations for alteiing and determining the payments and contri- 
 above claims. butions to be made by Ciiique Port pilots licensed before this Act comes into 
 operation, and for settling, purchasing, and commuting the claims of persons now 
 in receipt of relief from the said Cinque Port Pilots' Fund, and of the said 
 Cinque Port pilots licensed before this Act comes into operation, theu- widows, 
 appointees, and issue, and for determining the terms and conditions on Avhich 
 such settlement is to be made, and in framing such regulations due regard 
 shall be had to the intention hereinliefore expressed ; and the said Tiinity- House 
 may also, Avith such consent as aforesaid, from time to time nutke regulations for 
 the future management of the Tiinity House Pilots' Fund, and also for the man- 
 agement and maintenance of any pilot boats or cutters belonging to the said 
 Cinque Port pilots, or to any pilots for the time being under the government 
 of the said Trinity House, and for the distribution of the earnings (if any) of such 
 boats or cutters, and for the succession to, purchase of, or transfer of any 
 interest therein ; and all such regulations, after being approA'ed of by the Board 
 of Trade shall be binding upon all parties. 
 14, and subsequent sections, repealed by 17 & 18 Vict. c. 120, 2>ost.
 
 M. S. AMEiNUMENT ACT, 1(3 & 17 ViDT. 0. lol. 631 
 
 16 & 17 Vict. c. 131. 
 
 An Act to amend various Laivs rdatinrj to Merchant Skippinfj. 
 
 [August 20, 1853.] 
 
 Wherkas it irf expedient to amend various laws relating to niercliant shipping : 
 Be it enacted, &c., as follows: — 
 [The intervening sections have been repealed by 17 & Vict. c. 120.] 
 
 12. All debts and liabilities which have been duly iaicurred or undertaken J'^'^t]ng"/(;,'|^^ 
 by the Trinity House, the Commissioners of Northern Lighthouses, and tlie Port and charge!;. 
 of Dublin Corporation respectively, before the passing of this Act, and which 
 
 ai'e such as if this Act had not been passed ouglit to have been paid out of 
 the said tolls and rates, shall be paid or provided for out of the said mercantile 
 marine fund ; and all expenses of the Trinity House, the Commissioners of North- 
 ern Lighthouses, and the Port of Dublin Corporation, in respect of any 
 charitable or other pensions, superannuations, or other allowances which have 
 been lawfully granted or allowed by them respectively before the passing of 
 this Act, and which are such as if this Act had not been passed ought to have 
 been paid out of the said tolls and rates, shall be i^aid out of the said mercan- 
 tile marine fund during the respective lives or continuance in office of tlie persons 
 receiving the same, or other periods for which the same may have been granted or 
 allowed ; and if it appear that any debts or liabilities so iuciuTed as aforesaid, or 
 any of the expenses in respect of charitable or other pensions, and superannuation 
 or other allowances, are debts, liabilities, or expenses which if this Act had not 
 been passed would have lieen paid partly out of the said tolls and rates and partly 
 from other sources, such part thereof as the Board of Trade shall under the cir- 
 cumstances of the case think just shall be paid out of the said mercantile marine 
 fund ; and the Trinity House, the Commissioners of Northern Lighthouses, and 
 the Port of Dublin Corporation respectively shall submit to the Board of Trade 
 statements of all such debts and liabilities, and of all snch expenses or parts of 
 expenses in respect of charitable or other pensions, superannuations, or other 
 allowances, as are to be paid out of the said mercantile marine ftmd, and also 
 estimates of the sums which may be from time to time re(|uired to provide for 
 the same : and no payment in respect of any such debt, liability, or expense shall 
 be made out of the said mercantile marine fund unless provided for by such esti- 
 mates, and approved by the Board of Trade. 
 
 13. The Trinity House, the Commissioners of Northern Lighthouses, and the ^'J^Yc peliOTs' 
 Port of Dublin Corporation may from time to time, with the sanction of tlie ami grant 
 Board of Trade, commute any charitable or other pensions or other allowances snperanmiaiioii 
 payable out of the said mercantile marine fund, or grant superannuation s or compen- 
 sations to persons whose salaries may be charged on the said fund, and who may 
 
 be discharged or may retire, so nevertheless that no superannuation allowance or 
 compensation to any person so discharged or retiring shall exceed the propor- 
 tion of his salary which might be granted under similar circumstances to a 
 person in the public civil service under the Act of 4 & 5 Will. 4, c. 24, or under 
 any other Act for regulating such suj)erannuation allowances or compensations for 
 the time being in force ; and such commutations, superannuations, and compensa- 
 tions shall from time to time be included in the estimates to be submitted as 
 aforesaid, and paid out of the said fund. 
 
 24. No dues, tolls, rates, or charges, of what nature soever, levied or leviable, Dues levied on 
 or hereafter to be levied or leA-ialjle, on any ships, or on any goods carried in any souror°chai-ged 
 sliips, in any port of Great Britain or Ireland for any purpose whate^'er, shall be without consent 
 sold, mortgaged, or charged in any manner or for any purpose without the consent ^^^.^ j° ■^°^"^ °^ 
 of the Board of Trade first obtained, such consent to be signified by writing under 
 the hand of one of the secretaries or assistant secretaries to such board ; and any 
 sale, mortgage, or charge of any such dues, tolls, rates, or charges, made after the 
 passing of this Act, without such consent, shall be absolutely void, except in the 
 following cases ; (that is to say,) in the case of any sale, mortgage, or charge of 
 any dues, toUs, rates, or charges levied for the use of any dock or other under- 
 taking intended solely for the benefit of shipping, where the monies raised by
 
 632 M. S. AMENDMENT ACT, 16 & 17 VICT. C. 131. 
 
 the sale, mortgage, or charge are to be aj^plied exclusively for the pmiioses of 
 
 the undertaking for the use of M'liich such dues, rates, tolls, or charges are levied, 
 
 or leviable, in the case of any mortgage or charge made imder the authority of any 
 
 Act of PcU'liameut for the purpose of raising money to pay the costs of any work 
 
 constructed or duly contracted for before the passing of this Act ; and in the case 
 
 of any mortgage or charge made or continued under any powei-s of re-borroAving 
 
 or continuing money on mortgage or bond given by any Act of Parliament for the 
 
 purposes of any M-ork so constructed or contracted for as aforesaid. 
 
 Property be- 28. All monies Avliich under the " Seamen's Fund Winding-up Act, 1851," now 
 
 chaut'lcanieuv '^re or may hereafter beome part of or applicable to the purposes of the general 
 
 Fiiiul to be fund therein mentioned, shall be paid into the receipt of H. M.'s exchequer in such 
 
 paid into the juanner as the commissioners of H. M.'s treasury may direct ; and all property, 
 
 not being money so forming part of or being applicable to the piirposes of the said 
 
 fund as aforesaid, shall be sold, and the i^roduce thereof shall be paid into the 
 
 receipt of H. M.'s exchequer in like manner ; and all monies so paid into the 
 
 receipt of H. M.'s excheciuer shall be carried to and made part of the consolidated 
 
 fund of the U. K. 
 
 Exiien.-c of Mcr- 29. The several payments and expenses which by the said " Seamen's Fund 
 
 ciiaut sc.-iiucu-s "Winding-up Act, 1851," are charged partly on the said general fund thereiji men- 
 
 vii'ica for by'^^^' tioncd, and partly on the consolidated fund of the U. K. of CIreat Britain and 
 
 aunual vote. Ireland, shall, excejst as regards the paymeiit to the Seamen's Hospital Society 
 
 hereinafter mentioned, be proA-ided for by annual votes of parliament. 
 
 17 & 18 YiCT. c. 104. 
 
 An Ad to amend and consolidate the Acts relating/ to Merchant Sliijypiuf/. 
 
 Whereas it is expedient to amend and consolidate the Acts relating to 
 Merchant Shipping : Be it therefore enacted, &c., as follows : 
 
 f. ,. . Preliminary. 
 
 shortTiTic of !• This Act maybe cited for all pui-poses as *' The Merchant Shipping Act, 
 Act. 1854." ((() 
 
 Interpretation 2. In the construction and for the purposes of this Act (if not inconsistent with 
 of certuiii terms the context or subject-matter) the following terms shall have the respective 
 in \ Act. meanings hereinafter assigned to them ; that is to say, 
 
 "Her Majesty's Dominions" shall mean H. I\I.'s dominions strictly so called, 
 and all territories under the government of the East Intlia Company, and all 
 other territories (if any) governed by any charter or licence from the Crown 
 or Parliament of the U. K. : 
 " The United Kingdom" shall mean Gfreat Britain and Ireland : 
 "British Possession" shall mean any colony, plantation, island, territory, or 
 settlement within her Majesty's clominions, and not within the " United 
 Kingdom :" {h) 
 "The Treasury" shall mean the commissioners of H. M.'s Treasiuy : 
 " The Ailnui-aity" shall mean the Lord High Admii-al or the commissioners for 
 
 executing his office : 
 '■ The Board of Trade" shall mean the lords of the committee of privy coimcil 
 appointed for the consideration of matters relating to trade and forei^m 
 plantations : 
 "The Trinity House" shall mean the master, wanlens, and assistants of the 
 guild, fraternity, or brotherhood of the most glorious and undinded Trinity 
 
 {ri) As to citing the Merchant Shipping Acts (/j) As to Canada being one Brituli POfises'i'-'U, 
 
 CoUccliTely, see 39 «c 40 Vict. c. »0, s. 2, poiU bee 32 Vict* c. 11. s. 7,;ios(t
 
 M. s. ACT, 1854, 17 & 18 VICT. c. 104. 033 
 
 and of St. Clement in the pari^^li of Deptlbrd Stroud in the county of Kent, 
 commonly called the Corporation of the Trinity House of Dcptford Stroud : 
 
 "The Port of Dublin Corporation" shall mean the corporation for preserving 
 and improving the port of Duhlin ; (e) 
 
 " Consular officer" shall include consul-general, consul, and \ice-consul, and 
 any person for the time being discharging the duties of consul-general, consul, 
 or vice-consul : 
 
 " Receiver" shall mean any person appointed, in pursuance of this Act, receiver 
 of wi-eck : 
 
 "Pilotage authority" shall include all bodies and persons authorized to appoint 
 or license pilots, or to fix or alter rates of pilotage, or to exercise any juris- 
 diction in respect of pilotage : 
 
 " Pilot" shall mean any person not l^elonging to a ship who has the conduct 
 thereof : 
 
 "Qualified pilot" shall mean any person duly licensed by any pilotage autho- 
 rity to conduct ships to Avhich he does not belong : 
 
 "Master" shall include every person (except a pilot) having conmiand or charge 
 of any ship : 
 
 "Seamen" shall include every person (except masters, pilots, and apprentices 
 duly indentured and registered) employed or engaged in any capacity on 
 board any ship : 
 
 " Salvor" shall, in the case of salvage services rendered by the officers or crew 
 or part of the crew of any ship belonging to H. M., mean the person in com- 
 mand of such ship : 
 
 " Person" shall include body corporate : 
 
 " Ship" shall include every description of vessel used in navigation not pro- 
 pelled by oars : (d) 
 
 "Foreign-going ship" shall include every ship emploj-ed in trading or going 
 between some i)lace or places in the U. K. and some place or places situate 
 beyond the following limits : that is to say, the coasts of the U. K., the islands 
 of Guernsey, Jersey, Sark, Alderney, and Man, and the continent of Europe 
 between the river Elbe and Brest inclusive ; 
 
 " Home-trade ship " shall include every ship employed in trading or going 
 mthin the following limits ; that is to say, the U. K., the islands of Guernsey, 
 Jersey, Sark, Alderney, and Man, and the continent of Europe between the 
 river Elbe and Brest inclusive : 
 
 " Home-trade passenger ship" shall mean every home- trade ship employed in 
 carrying passengers ; 
 
 " Lighthouses" shall, in addition to the ordinary meaning of the word, include 
 floating and other lights exhibited for the guidance of sliips, and " buoys and 
 beacons" shall include all other marks and signs of the sea : 
 
 " Wreck" shall include jetsam, flotsam, lagan, and derelict found in or on the 
 shores of the sea or any tidal water. 
 
 3. This Act shall come into operation on the first day of May, 1855. Commeuccmeut 
 
 4. This Act shall not, except as herein-after specially provided, aiJijly to sliips ''^ ^'^^- . 
 belonging to her Majesty. T^^^^ 
 
 5. This Act shall be divided into eleven parts : — 
 The first part relating to the Board of Trade ; its general functions : 
 The second part to British Ships ; their ownership, measurement, and registry : 
 The thii'd part to masters and seamen : 
 The fourth part to safety and prevention of accidents : 
 The fifth part to pilotage : 
 The sixth part to lighthouses : 
 The seventh part to the mercantile marine fund : 
 The eighth part to wrecks, casualties, and salvage : 
 The ninth part to liability of shipo-s\aiers : 
 The tenth part to legal procedure : 
 The eleventh part to miscellaneous matters. 
 
 ('') Tills corporation is divided into two corpo- tlic veisel was just humched in au imperfect state- 
 ration?. See Dublin Port Act, 1S67, 30 Yict, Sec Kv parte Fcrr/nson, 40 L. J. Q. B. 106 ; L. K- 
 f. 81, s. 2 (local and personal). 6 Q. B. 280 ; The C. .V. BiUhr, L. R. 4 A. & E. 241 ; 
 
 Q-l) Sec The AmlaUiSiauj'ilh.'J, Ad,'65, where where oars ^^•crc used as au auxiliary power. 
 
 Division of Act.
 
 G34 M. 8. ACT, 185.t, TAliT 1, 
 
 PART I. 
 
 Functions of THE BOARD OF TRADE : ITS CxENERAL FUNCTIO>,*tJ. 
 
 Board of Trade, 
 
 Bom-d of Trade 6. The Board of Trade .shall be the deparlineiit to iiiidertuke the yeueial 
 men^t to^"upcr- ^i^pei'intendeiice of matters relatuig to luerchant ships and seamen, and shall Le 
 intend merchant authorized to carry into execution the provisions of this Act, and of all other Acts 
 shipping. relating to merchant ships and seamen in force for the time heing, other than such 
 
 Acts as relate to the reventio. 
 Certificates and 7. All documents vvhatev^er purporting to be issued or -written by or imder the 
 SorUng^o\r"" <:'lii"ection of the Board of Trade, and purporting either to be sealed with the seal 
 sealed or signed of such board, or to be signed by one of the secretaries or assistant secretaries to 
 in a given f^ijdi l:)oard, shall be received in evidence, and shall he deemed to be issued or 
 
 eeive'd in cvi-'*^' written by or under the dii-ection of the said board, A^ithout further proof, imless 
 deuce. the contrary be shown ; and all documents purporting to be certiticates issued by 
 
 the Board of Trade in pursuance of tliis Act, and to Ije sealed with tlie seal of 
 such boai'd, or to be signed by one of the officere of the marine department of such 
 board, shall be received in evidence, and shall be deemed to be .such certificate.s, 
 without further proof, unless the contrary be shovni. 
 Board of Trade 8. The Board of Trade may from time to time prepare and sanction forms of 
 to issue forms of tlie various books, instruments, and papers required by this Act other than those 
 lustriimeuts. i-ec[uired by the second part thereof, and may from time to time make such altera- 
 tions therein as it deems requisite ; and shall, before finally issuing or altering 
 any such form, give such public notice thereof as it deems necessary in order to 
 prevent inconvenience ; and shall cause every such form to be sealed with such 
 seal as aforesaid, or marked with some other distinguishing mark, and to be sup- 
 plied at the custom-houses and shipping offices ((() of the U. K. free of charge, 
 or at such moderate prices as it may from time to time fix, or may license any 
 persons to print and .sell the same ; and every such book, instrument, and paper 
 as aforesaid, shall be made in the form issued by the Board of Trade, and sanc- 
 tioned by it as the proper form for the time Ijeing ; and no such book, instrument, 
 or paper as aforesaid, unless made in such form, sliall l)e admissible in evidence in 
 any civil proceeding on the part of any owner or master of any ship ; and every 
 such book, instrument, or j^aper, if made in a form purporting to be a proper 
 form, and to be sealed or marked as aforesaid, shall be taken to be made in the 
 form herel)y required, unless the contrary is proved. 
 Certain forms 0. All instruments used in carrying into effect the second part of this Act, if 
 and instruments ^Qt already exempted from stamp duty, and all instruments which by the 3rd, 4th, 
 from Btamp "^ ^tli, or 7th parts of this Act are required to be made in forms sanctioned by the 
 duty. Board of Trade, if made in such forms, and all instruments used by or under the 
 
 direction of the Board of Trade in carrying such parts of tliis Act into effect, shall 
 be exempt from stamp duty. 
 Penalties fnr 10. Every person who forges, assists in forgoing, or procures to he forged, such 
 
 forgery of seal seal or other tlistinguishing mark as aforesaid, or who fraitdulently altei-s, assists 
 ■litcraudn'of^"* "^ fraudulently altering, or procures to be fraudulently altered, any form issued 
 tonus, and for by the Board of Trade, witli the view of evading any of tlie provisions of this Act 
 not using ^'rius q^. .^^^y comlitiou contained in such form, shall for each offence be deemed guilty 
 of*Tnule! ^'* of a misdemeanor ; and every person who, in any case in which a form sanctioned 
 liy the Board of Trade is by the third part of tliis Act required to be used, uses 
 without reasonable excuse any forna not purporting to be so sanctioned, or who 
 prints, sells, or uses any document purporting to be a form so sanctioned, knowing 
 the same not to be so sanctionetl for the time being or not to have been prejjared 
 and issued by the Board of Trade, .shall for each such offence incu)- a penalty not 
 exceeding £'10. 
 Application of H- Subject to the provisions hereinafter contained, all fees and payments 
 moneys and lines (other than fines) coming to the hands of the Board of Trade imder the third and 
 Twlo'^ ^'*"' ""'^ foiu-th parts of this Act, shall be carried to the account of tlie ]\Iercautile Marine 
 
 " (o) l^ov; mercantile marine offlce?>
 
 17 & 18 VICT. c. 104 635 
 
 Fund liereinal'ter mentioned, and sliall be dealt with as lierein prescribed in that 
 behalf ; and all lines coming to the hands of the Board of Trade under this Act 
 shall be paid into the receipt of H. M.'s exchecpier in such manner as the treasury 
 may direct, and shall be carried to and form part of the consolidated fund of 
 the U. K. (6) 
 
 12. All consular officers, and all ofl&cers of customs abroad, and all local marine rvcturns t<i 
 boards and shijiping masters (c), shall make and send to the Board of Trade such Board oi Ti-adc. 
 returns or reports on any matter relating to British merchant shipping or seamen 
 
 as such board requires ; and all shipping masters (c) shall, whenever required by the 
 Board of Trade, i)roduce to such boartl, or to its othcers all official log books and 
 other documents which, in pursuance of this Act, are delivered to them. 
 
 13. Eveiy officer of the Board of Trade, and every commissioned officer of any g^'^fffoj* 
 of H. M.'s ships on full pay, and every British consular officer, and the registrar- Trade, naval 
 general of seameii (rf) and his assistant, and every chief officer of customs in any place 5^,*^'"'^ f "'*"'''' 
 in her Majesty's dominions, and every shipping master (c), may, in cases whei-ehe gcncnu of*"^' 
 has reason to suspect that the provisions of this Act or the laws for the time being seaiueu, 
 relating to merchant seamen and to navigation are not complied with, exercise the c'"Jtoms'^''&f 
 following powers : (that is to say,) jiiay iuspcet ' 
 
 He may require the owner, master, or any of the crew of any British ship to ;,'j,'(i"^^"iater 
 produce any official log books or other documents relating to such crew or any cre^\-.s 
 member thereof in their respective possession or control : 
 He may rec[iure any such master to x^roduce a list of all jjersons on board his 
 ship, and take copies of such official log books, or documents, or of any part 
 thereof : 
 He may muster the crew of any such ship : 
 
 He may summon the master to appear and give any explanation concerning 
 such ship or her crcAV or the said official log books or documents : 
 And if upon requisition duly made by any person so authorized in that behalf as 
 aforesaid, any person refuses or neglects to prodi;ce any such official log book or 
 document as he is hereinbefore rec^uired to prodiice, or to allow the same to be 
 inspected or copied as aforesaid, or impedes any such muster of a creAV as afore- 
 said, or refuses or neglects to give any explanation which he is hereinbefore 
 required to give, or knowingly misleads or deceives any person hereinbefore 
 authorized to demand any such explanation, he shall for each such offence incur a 
 penalty not exceeding 20^. 
 
 14. The Board of Trade may from time to time, whenever it seems expedient to Board of Trade 
 them so to do, appoint any person, as an inspector, to report to them iipon the "'"^.''''1'°'"'' 
 following matters : (that is to say,) lufpcc ois. 
 
 (1.) Upon the nature and causes of any accident or damage which any ship has 
 
 sustained or caused, or is alleged to have sustained or caused : 
 (2.) Whether the provisions of this Act, or any regulations made under or by 
 
 virtue of this Act, have been complied with : 
 (8.) "Whether the hull and machinery of any steam ship are sufficient and in 
 
 good condition. 
 
 15. Every such inspector as aforesaid shall have the following powers : (that is Powers of 
 
 to say,) iuspector,^. 
 
 (1.) He may go on board any ship, and may inspect the same or any part 
 thereof, or any of the machinery, boats, e(pupments, or articles on board 
 thereof to Avhich the provisions of this Act apply, not unnecessarily 
 detaining or delaying her from proceeding on any voyage : 
 
 (2.) He may enter and inspect any premises, the entry or inspection of Avhich 
 appears to him to be requisite for the purpose of the report which he is 
 directed to make : 
 
 (3.) He may, by summons under his hand, require the attendance of all such 
 persons as he thinks tit to call before him and examine for such pur- 
 pose, and may require answers or returns to any inquiries he thinks fit 
 to make : 
 
 (h) See 30 & 40 Vict, c, 80, 8. 39, po.sL (d) Now Rcgislrar-Gcueral of Shipping aud 
 
 (c) Now superintendent of mercantile mariuc Seamen ; see 36 & 36 Vict. c. 73, s. 4, post. 
 offices; 2d & 26 Vict. C. 63, s. 15.
 
 636 
 
 M. S. ACT, 1854, TAET 2, 
 
 Wituesses to 
 be allowed 
 cvpeuscs. 
 
 reuaUy 
 for refuting 
 to give 
 cvideucc. 
 
 Penalty for 
 obstructing 
 inspectors in 
 the execution 
 of their 
 duty. 
 
 (4.) He may require ami enforce the production oi' all books, papers, or docu- 
 ments which he consideis important for such purpose : 
 
 (■").) He may administer (,)aths, or may, in lieu of requiring or administering an 
 oath, recjuii'e every person examined by him to make and subscribe 
 a declaration of the truth of the statements made by him in his 
 examination : 
 And every witness so summoned as aforesaid shall be allowed such expenses as 
 would be allowed to any witness attending on subpoena to give evidence before any 
 Court of Eecord, or if in Scotland, to any witness attending on citation the Court of 
 J usticiary ; and in Ciise of any dispute as to the amount of such expenses, the same 
 shall be referred by the inspector to one of the masters of H. M . 's Comt of Queen's 
 Bench in England or Ireland, or to the Queen's and lord treasurer's remembrancer 
 in Scotland, who, on a rei^uest made to him for that purpose, under the hand of 
 the said inspector, shall ascertain and certify the proper amount of such expenses ; 
 and e^•ery person who refuses to attend as a Avitness before any such inspector, 
 after having been requir-ed so to do in the manner hereby directed, and after hav- 
 ing had a tender made to him of the expenses (if any) to which he is entitled as 
 aforesaid, or who refuses or neglects to make any answer, or to give any return, or 
 to produce any document in his possession, or to make or subscribe any declara- 
 tions which any such inspector is hereby empowered to require, shall for each such 
 offence incur a penalty not exceeding 10^. 
 
 16. Every person who wilfully impedes any such inspector appointed by the 
 Board of Trade as aforesaid in the execution of his duty, whether on board any 
 ship or elsewhere, shall incur a penalty not exceeding 10/., and may be seized and 
 detained by such inspector or other person, or by any person or persons whom he 
 may call to his assistance, until such offender can be conveniently taken before 
 some justice of the peace or other officer having proper jurisdiction. 
 
 PART II. 
 
 BUltlSH SHIi'Si : iHKlK O^V^•EU^iHl^, JlEA.'iUREMJiXl', AND KEGIbXKV. 
 
 Applkatioii, 
 Amplication. jy^ n,^^ 2nd part of this Act shaU apply to the whole of H. M.'s dominions, 
 
 Descriiition and Oi'mership of British Ships, 
 
 Application 
 of Part II. 
 of Act. 
 
 Description 
 and ownership 
 of British 
 ships. 
 
 Description and 18. Xo ship shall be deemed to Ijc a British ship unless she belongs wholly to 
 mcncrjiupof oAniers of the following description ; (that is to say,) 
 "•^"'' (1.) Natural-born British sul)jects : 
 
 Provided that no natural-born subject who has taken the oath of allegiance 
 to any foreign sovereigm or state shall be entitled to be such owner as 
 aforesaid, unless he has subsec[uently to taking such last-mentioned oath 
 taken the oath of allegiance to H. M., and is and continues to be during 
 the whole period of his so being an 0A\Tier resident in some place within 
 H. M.'s dominions, or if not so resident, a member of a British factory, or 
 partner in a house actually carrying on business in the U. K. or in some 
 other place witliin H. M.'s dominions : 
 (2.) Persons made denizens by letters of denization, or naturalized by or pur- 
 suant to any Act of the imperial legislature, or by or pursuant to 
 any act or ordinance of the jjroper legislative authority in any British 
 possession : (rt) 
 Provided that such persons are and continue to be during tlie Mhole period 
 
 ('') ^cc >:atiU'alization Act, 1870.. 38 & 31 Vict. c. IJ, ?. 11.
 
 17 & 18 vrcT. 0. 104. G37 
 
 of their .so heing owners resident in some place within IT. 'M.'a dominion?, 
 or if not so resident, members of a British factory, or partners in a lionse 
 actually carrying on husiness in the U. K. or in some other place within 
 H. ^I.'s dominions, and have taken the oath of allegiance to H. M. subse- 
 quently to the period of their being so made denizens, or naturalized: 
 (3.) Bodies coqiorate established under, subject to the laws of, and having their 
 principal place of business in the U . K. or some British possession, 
 
 19. Every British ship must be registered (h) in manner hereinafter mentioned, Briti.sh sliips 
 
 except, witli certain 
 
 (1.) Ships duly registered before this Act comes into operation : must bere^is- 
 
 (2.) Ships not exceeding 15 tons burden employed solely in navigation on the tered. 
 rivers or coasts of the U. K., or on the rivers or coasts of some British 
 possession within which the managing owners of such ships are resident ; 
 (3.) Ships not exceeding 30 tons burden, and not having a whole or fixed deck, 
 and employed solely in fishing or trading coastwise on the shores of 
 Newfoundland or parts adjacent thereto, or in the Gulf of St. Lawrence, 
 or on such portion of the coasts of Canada, Nova Scotia, or New Brun.s- 
 wick as lie bordering on such gulf : 
 And no ship hereby rerpiired to be registered shall, unless registered, be recog- 
 nized (c) as a British ship ; and no ofHcer of customs shall grant a clearance or 
 transire to any ship hereby required to be registered for the purpose of enabling 
 her to proceed to sea as a British ship, unless the master of such ship, upon being 
 required so to do, produces to him such certificate of registry as is hereinafter 
 mentioned ; and if such ship attempts to proceed to sea as a British ship without 
 a clearance or transire, such officer may detain such ship until such certificate is 
 produced to him. 
 
 Measurement of Tonnaqe. 
 
 '' "^ Measurement 
 
 of tonnage. 
 
 20. Throughout the following rules the tonnage deck shall be taken to be the Tonnage" 
 upper deck (d) in ships which have less than three decks, and to be the second deck ; feet ; 
 deck from below in all other sliips ; and in carrying such rules into effect all ^^"^c'™"'^- 
 measurements shall be taken in feet and fractions of feet, and all fractions of feet 
 
 sliall be expressed in decimals. 
 
 21. The tonnage of every ship to be registered, with the exceptions mentioned Rule I. 
 in the next section, shall pre^dously to her being registered be ascertained by the „ , ,": 
 folio-wing rule, hereinafter called Rule I. ; and the tonnage of every ship to which to'be regis- 
 such rule can be applied, whether she is about to lie registered or not, shall be tered and 
 ascertained b}' the same rule : ot^wiiidi^''^ 
 
 (1.) Measure the length of the ship in a straight line along the upper side of the the hold is 
 tonnage deck from the inside of the inner plank (average thickness) at -'*^''"'- 
 the side of the stem to the inside of the midship stern timber or plank Lengths, 
 there, as the case may be (average thickness), deducting from this length 
 what is due to the rake of the liow in the thickness of the deck, and what 
 is due to the rake of the stern timber in the thickness of the deck, and 
 also what is due to the rake of the stern timber in one-third of the round 
 of the beam ; di\dde the length so taken into the number of ecptal parts 
 required by the following table, according to the class in sitch table to 
 which the ship belongs : 
 
 Table. 
 
 Class 1. Ships of which the tonnage deck is according to the above measure- 
 ment .50 feet long or under, into 4 equal parts : 
 „ 2. Ships of which the tonnage deck is according to tlie above measure- 
 ment above 50 feet long and not exceeding 120, into 6 equal parts : 
 
 (b) As to variance between vessels n.ime anil (<-) The.l/('7a?HS)«»,47 L. J. Ad. C5 ; see s. lOG. 
 
 name in wliieh registered, see -livll v. Bunk of (d) T)ic Lord Advocate v. Clude Xavifjation 
 
 London, .3 II. & \. 730. Co., 2 Asp. Mar. L.iw C'ns 602.
 
 638 M. s. ACT, 1854, faet 2, 
 
 Class 3. Ships of wliicli the tonnago dock is according to tho ahove mea.^ure- 
 ment above 120 feet long and not exceeding 180, into 8 equal parts : 
 „ 4. Ships of which the tonnage deck is according to the above measure- 
 ment above ISO feet long and not exceeding 225, into 10 equal parts : 
 „ 5. Ships of which the tonnage deck is according to the above measure- 
 ment above 225 feet long, into 12 equal parts. 
 ai^°^^""^* (^0 Then the hold being first sufficiently cleared to admit of the required depths 
 
 and breadths being properly taken, find the transverse area of such ship 
 at each point of division of the length as follows : — Measure the depth 
 at each point of division, from a point at a distance of one-third of the 
 round of the beam below such deck, or, in case of a break, below a line 
 stretched in continuation tliereof, to the upjier side of the floor timber at 
 the inside of the limber strake, after deducting the average thickness of 
 the ceiling which is lietween the liilge planks and limber strake ; then, 
 if the depth at the midship division of the length do not exceed sixteen 
 feet, divide each depth into foiu- equal parts ; then measure the inside, 
 horizontal breadth at each of the three points of division, and also at the 
 npper and lower points of the depth, extending each measurement to the 
 average thickness of that part of the ceiling which is between the points 
 of measurement ; number these breadths from above (i.e., numbering the 
 ripper breadth one, and so on down to the lowest breadth) ; multiply the 
 second and fourth by 4, and the third by 2 ; add these products 
 together, and to the sum add the first breadth and the fifth ; multiply the 
 quantity thus obtained by one-third of the common interval between the 
 breadths, and the product shall be deemed the transverse area ; but if the 
 midship depth exceed 16 feet, divide each depth into 6 equal parts instead 
 of 4, and measure as before directed the horizontal breadths at the 5 
 points of division, and also at the upper and lower points of the depth ; 
 number them from above as before ; multiply the second, fourth, and 
 sixth by 4, and the 3rd and 5tli liy two ; add these products together, and 
 to the sum add the first breadth and the seventh ; multiply the quantity 
 thus obtained by one-third of the common interval between the breadths, 
 and the product shall be deemed the tranverse area. 
 Computation (•^•) Having thus ascertained the transverse area at each point of division of the 
 
 from area length of the ship as required by the abo^'e table, proceed to ascertain the 
 
 register tonnage of the ship in the folloA^-ingmamier : — Number the areas 
 successively, 1, 2, 3, &c., Xo. 1 being at the extreme limit of the length 
 at the bow, and the last Xo. at the extreme limit of the length of the 
 stern ; then, whether the length be divided according to the table into 
 four or twelve j)arts as in classes 1 and 5, or any intennediate numlier as 
 in classes 2, 3, and 4, multiply the second and every even numbered area 
 by four, and the third and every odd numbered area (except tlu first and 
 last) by two ; add these procUicts together, and to the sum add tho first 
 and last if they yield anything ; multiply the Cjuantity thus obtained by 
 ono-thii-d of the common inteixal between the areas, and the product will 
 be the cubical contents of the space under the tonnage deck ; divide this 
 product bj' one himdred, and the quotient being the tonnage under the 
 tonnage deck shall be deemed to be the register tonnage of the ship, sub- 
 ject to the additions and deductions hereinafter mentioned. 
 Poop ana (4.) If there he a break, a poop, or any other pemanently closed-in space on the 
 
 •f^ d-in^ upper dock, available for cargo or stores, or for the berthing or accom- 
 
 space.' modation of passengers or crew, the tonnage of such space shall be ascer- 
 
 tained as follows :— Measure the internal mean length of such space in 
 feet, and divnde it into two equal jjarts ; measure at the middle of its 
 lieight three inside breadths, namely, one at each end and the other at 
 the middle of the length ; then to the sum of the end breadths add fom* 
 times the middle breadth, and multiply the whole sum by one-third of 
 the common interval between the breadths ; the j^roduct will give the 
 mean horizontal area of such space. Then measure the mean height, and 
 multiply it by the mean horizontal area ; divide the product by one 
 hundred, and the quotient shall be deemed to be the tonnage of such 
 space, and shall be added to the tonnage under the tonnage deck, ascer-
 
 I 
 
 17 & 18 VICT. 0. 104. 639 
 
 tained as atovosaiJ, subject to the followiiici; provisoes ; first, tliat nntliing 
 shall ho a(hleil for a closed-in space solely appropriated to the l:terthing of 
 the crew, unless such space exceeds one-twentieth of the remaining 
 tonnage of the ship ; and in case of such excess, the excess only shall he 
 added ; and, secondly, that nothing shall he added in respect of any 
 hnilding erected for the shelter of deck passengers, and approved hy the 
 Board of Trade. 
 (5.) If the ship has a third deck, commonly called a spar deck, the tonnage of In case of 
 
 the space between it and the tonnage deck shall he ascertained as follows: ^g^j^g'' ^°^^ 
 — Measure in feet the inside length of the space at the middle of its 
 height from the plank at the side of the stem to the lining on the timbers 
 at the stern, and divide the length into the same number of equal parts 
 into which the length of the tonnage deck is divided as above directed ; 
 measure (also at the middle of its height) the inside breadth of the space 
 at each of the points of division, also the breadth of the stem and the 
 breadth at the stern ; number them successively 1, 2, 3, &c., commenc- 
 ing at the stem ; multiply the second and all the other even numbered 
 breadths by four, and the third and all the other odd numbered breadths 
 (except the first and last) hy two ; to the sum of these products add the 
 first and laot breadths ; multiply the whole sum by one-third of the 
 common interval between the breadths, and the result will give in super- 
 iicial feet the mean horizontal area of such space ; measure the mean 
 height of such sjiace ; and multiply In" it the mean horizontal area, and 
 the product will he the cubical contents of the space ; divide this product 
 by one hundred, and the quotient shall be deemed to he the tonnage of 
 such space, and shall be added to the other tonnage of the shiji ascer- 
 tained as aforesaid ; and if the ship has more than three decks, the 
 tonnage of each space between decks above the tonnage deck shall be 
 severally ascertained in manner above described, and shall be added to 
 the tonnage of the ship ascertained as aforesaid. 
 22. Ships which, requiring to be measured for any purpose other than registry, Rulh II. 
 haA^e cargo on board, and ships which, reqiiiring to be measured for the purpose of „ , ~. — 
 registry, cannot be measured by the rule above given, shall be measured by the not reqim-ing 
 following rule, hereinafter called Rule II. : — (a) vesistry with 
 
 (1.) Measure the length on the upper deck from the outside of the outer plank ^^^^ *^" 
 at the stem to the aftside of the stern post, deducting therefrom the Lp',^„/j, 
 distance between the aftside of the stern jtost and the rabbet of the stern ° 
 post at the point where the counter plank crosses it ; measure also the 
 greatest Ijreadth of the sliip to the outside of the outer planking or wales, Broadtli. 
 and then, having fu-st marked on the outside of the ship on both sides 
 thereof the height of the upper deck at the ship's sides, giit the ship at 
 the greatest breadth in a direction perjiendicular to the keel from tlie 
 height so marked on the outside of the ship on the one side to the height 
 so marked on the other side liy passing a chain under the keel ; to half Girthing of 
 the girth thus taken add half the main breadth , square the sum ; the ship, 
 multiplj" the resiilt by the length of the ship taken as aforesaid ; then 
 multiply this product by the factor "0018 (eighteen ten-thousandths) in 
 the caseot ships built of wood, and by -0021 (twentj^-one ten-thousandths) 
 in the case of ships built of iron, and the product shall be deemed the 
 register tonnage of the ship subject to the additions and deductions 
 hei'cinafter mentioned. 
 (2.) If there be a break, a poop, or other closed-in space on the upper deck, the Poop and 
 
 tonnage of such space shall be ascertained by multiplying together the °^'^'^'' cioseJ-in 
 mean length, breadth, and dej^th, of such space, and dividing the prodiict upper de°k. 
 by 100, and the quotient so olitained shall be deemed to be the tonnage 
 of such space, and shall, subject to the deduction for a closed-in space 
 appropriated to the crew as mentioned in Eule I,, be added to the tonnage 
 of the ship ascertained as aforesaid. 
 
 (ri) Soo 18 & 19 Tict. C. 91, 9. 14, post.
 
 040 
 
 M. S. AfT, 1854, PART 2, 
 
 Rule II r. 
 
 AUowancp 
 for PiigiiKi- 
 room In 
 steamers. 
 
 To bo rate- 
 able in 
 ordinary 
 steamers, 
 
 May be mea- 
 sured wliero 
 I lie spaee 
 i-: iimisiiHlly 
 large or 
 small, 
 
 Mode of 
 measurement. 
 
 In case of 
 
 separate 
 
 compartraeut*. 
 
 ?haft trunk of 
 screw steamer. 
 
 Alteration of 
 engine-room. 
 
 Penalty for 
 carrying goods 
 in such space. 
 
 Rule IV. 
 
 Open ships, how 
 measured. 
 
 23, III evorv .ship propelled by .steam ov other power requiring engiue-rooni, nn 
 allowance sliail be made for the .space occupied by the propelling power, and the 
 .amount .so allowed shall l)e deducted from the gross tonnage of the ship ascer- 
 tained as aforesaid, and the remainder shall be deemed to be the register 
 tonnage of such shii) ; and such, deduction sliall be estimated as follows ; (that is 
 to say^) 
 
 (ft) As regards ships propelled by paddle wheels, in which the tonnage of 
 the .space solely occupied by and necessary for the proper working of the 
 boilers and machinery is above 20 per cent, and under 30 per cent, of the 
 gross tonnage of the ship, such deduction shall he thirty-seven one-hundredth- 
 of .such gross tonnage ; and in .ships propelled by screws, in which the tonnagi' 
 of such space is above 13 per cent, and under 20 per cent, of such gros- 
 tonnage, sucli deduction .shall be thirty-two one-lumdredths of such gros- 
 tonnage : 
 
 (b) As regards all other ships, the deduction shall, if the commissioners of 
 customs {(() and the OM*ner both agree thereto, be estimated in the same 
 manner ; but either they or he may in their or his discretion require the .space 
 to be measured and the deduction estimated accordingly ; and whenever such 
 measurement is so required the deduction .shall consist of the tonnage of the 
 Rj^ace actitally occupied by or required to l>e inclosed for the proper working 
 of the boilers and machinery, with the addition in the case of ships propelled 
 by paddle wheels of one-half, and in the case of ships propelled by screws of 
 three-fourths of the tonnage of such space ; and the measurement and use of 
 .such space .shall be governed by the following rules ; (that is to say,) 
 (1.) Measure the mean depth of the space from its crown to the ceiling at the 
 limber strake, measure also three, or, if necessary, more than three 
 breadths of the space at the middle of its depth, taking one of such 
 mea.surements at each end, and another at the middle of the length ; take 
 the mean of such In'eadths ; measure also the mean length of the space 
 between the foremost and aftermost bulkheads or limits of its length, 
 excluding such parts, if any, as are not actually occupied by or rec^uired 
 for the proper Avorking of the machinery ; multiply together these three 
 dimensions of length, breadth, and depth, and the product will be the 
 cubical contents of the space below the crown ; then find the cubical 
 contents of the space or spaces, if any, above the crown aforesaid, which 
 are framed in for the machinery or for the admission of light and air, by 
 multiplying together the length, depth, and breadth thereof ; add such 
 contents to the cubical contents of the space below the crown ; di\'ide 
 the sum by 100 ; and the result shall be deemed to lie the tonnage of the 
 said .sjiace : 
 (2.) If any .ship in which the space aforesaid is to be measured the engines and 
 boilers are fitted in separate compartments, the contents of each shall be 
 measured severally in like manner according to the above rules, and the 
 sum of their several results .shall be deemed to be the tonnage of the 
 said sjDace : 
 (3.) In the case of screw steamers in which the space aforesaid is to be mea- 
 sured, the contents of the shaft trunk .shall be added to and deemed to 
 form pait of such space, and shall be ascertained by multiplying together 
 the mean length, breadth, and depth of the trunk, and dividing the pro- 
 duct by 100 : 
 (4.) If in any sliip in which the space aforesaid is to be measured, any altera- 
 tion be made in the length or capacity of such sj)ace, or if any cabins be 
 fitted in such .sjiace, such ship shall be deemed to be a shij) not regis- 
 tered itntil re-measurement : 
 (5.) If m any ship in which the space aforesaid is to be measured, any goods 
 or stores are stowed or carried in such space, the master and owner shall 
 each be liable to a i:»enalty not exceeding ^100. 
 24, In ascertaining the tonnage of open ships the upper edge of the upper 
 .strake is to form the boundary line of measurement, and the depth shall be takeii 
 
 ('^0 Now Board of Trade, seo 35 & 36 Yict. c. 73, s. 3, 2^ost.
 
 17 & 18 VICT. c. 104. 641 
 
 from an atliwartship line, extended from upper edge to upper edge of the said 
 strake at eacli division ol the length. 
 
 25. Repealed by 34 & 35 Vict. c. 110, s. 12. 
 
 26. Whenever the tonnage of any ship has been ascertained and registered in Tonnage when 
 accordance with the provisions of this Act, the same shall thenceforth be deemed to'bo'everaftor'^ 
 to he the tonnage of snch ship, and he repeated in every snl:>sefj^nent registry doenied tlic 
 thereof, unless any alteration is made in the form or capacity of such ship, or to'inas'". 
 unless it is discovered that the tonnage of such ship has been erroneously com- 
 puted ; and in either of such cases such ship shall be re-measured, and lier tonnage 
 determined and registered according to tlie rules hereinbefore contained in that 
 
 behalf. 
 
 27. The rules for the measurement of tonnage herein contained shall not make Rc-uieasiyc- 
 it necessary to alter the present registered tonnage of any British ship registered ahoady *" ^'^^^ 
 before this Act comes into operation ; but if the owner of any such ship desires registcrod may 
 to have the same re-measured according to such rules, he may apply to the com- ^^° {^Jf ^''' '"'"'' "*"'*' 
 missioners of customs (/*) for the purpose, and such commissioners (h) shall there- compulsory, 
 iipon, and on payment of such reasonable charge for the expenses of re-mcasurement, 
 
 not exceeding the sum of seven shillings and sixpence for each transverse section, 
 as they may authorize, direct such re-measurement to be made, and siicli ship shall 
 thereupon be re-measured according to such rules as aforesaid, or according to 
 such of them as may be applicable ; and the number denoting the register ton- 
 nage shall be altered accordingly. 
 
 28. If it appears to the commissioners of customs (b) that in any steam ship P'Jwer to 
 measured before this Act comes into operation store rooms or coal bunkers have engine-rooms 
 been introduced into or thrown across the engine-room, so that the deduction from improperly 
 the tonnage on account of the engine-room is larger than it onght to be, the said ^^^endcd. 
 commissioners (b) may, if they think fit, direct such engine-room to be re-measured 
 according to the rules in force before this Act conies into operation, excluding the 
 
 space occupied by sucli store rooms or coal bunkers, or may, if the owners so 
 desire, cause the ship to be re-measured according to the rules hereinbefore contained, 
 and subject to the conditions contained in the last preceding section ; and after 
 re-measurement the said commissioners (h) shall cause the ship to be registered 
 anew, or the registry thereof to be altered, as the case may recjuire. 
 
 29. The commissioners of customs (b) may, with the sanction of the Treasury, Offl^^^i's may be 
 appoint such persons to superintend the survey and admeasurement of ships as regaiations "' 
 they think fit ; and may, [with the approval of the Board of Trade] (c), make such made for 
 regulations for that purpose as may be necessary ; and also [mth the like "i\jp^|"'^'"^"*' °^ 
 approval] (c), make such modifications and alterations as from time to time become 
 
 necessary in the tonnage rules hereby prescribed, in order to the more accurate 
 and uniform application thereof, and the eft'ectual carrying out of the principle of 
 admeasurement tliereiu adopted (d). 
 
 Beqistry of British SJdps. ^^oistryof 
 
 '' "J •> J- British ships. 
 
 30. The following persons are required to register British ships, and shall be ^'■^.si.^^™'^. of 
 deemed registrars for the purposes of this Act ; (that is to say,) — a im s ip^. 
 
 (1.) At any port or other place in the U. K. or Isle of Man approved by the 
 commissioners of customs for the registry of ships, the collector, comp- 
 troller, or other principal officer of customs for the time being : 
 
 (2.) In the Islands of Guernsey and Jersey, the principal officers of H. M.'s 
 customs, together with the governor, lieutenant-governor, or other person 
 administering the government of such islands respectively : 
 
 (3.) In Malta, Gibraltar and Heligoland, the governor, lieutenant-governor, or 
 other person administering the government of such places respectively : 
 
 (&) Now Board of Trade. See 35 & 36 Vict. Vict. c. 63, s. 60, pos(. Rules must not alter the 
 
 c. 73, s, 3, 2wst. allowance for space occupied by the propelling 
 
 (e) Since the 35 & 36 Vict. c. 73, s. 3, this section power in steam vessels. Citit of DiihVin Steam 
 
 must be read Without the words within brackets; Packet Co. v. Thompson, L. 11. 1 C. P. 355. As to 
 
 see note (a), supra. levying tonnage rates under local acts on rc- 
 
 ((/) As to ships of a foreign country, see 25 k 26 gistered tomiage, see 25 & 26 Yict. c. 63, s. 4. 
 
 3 T
 
 642 
 
 H. S, ACT, 1854, PAET 2, 
 
 Substitution of 
 governor abroad 
 for commis- 
 sioners of 
 customs, anil 
 " of consul for 
 justice. 
 
 Kegistrartokcop 
 register book-;. 
 
 Port of registry- 
 of Britisli ship." 
 
 Application for 
 registry, by 
 •n-hom to be 
 made. 
 
 Surrey of .?liip. 
 
 Rules as to 
 entries in 
 register book. 
 
 (4.) At any port or place so approved as aforesaid -witliin the limits of the charter 
 but not under the government of the East India Company, and at which 
 no custom-house is established, the collector of duties, together with 
 the governor, lieutenant-governor, or other person administering the 
 government : 
 
 (5.) At the ports of Calcutta, Madras, and Bombay, the master attendants, and 
 at any other port or i^lace so approved as aforesaid within the limits of 
 the charter and under the government of the East India Company, the col- 
 lector of duties, or any other per.son of six years' standing in the civil 
 service of the said company, who is appointed by any of the governments 
 ofthe said comi^any to act for this purpose : 
 
 (0.) At every other port or place so approved as aforesaid within H. M.'s do- 
 minions abroad, the collector, comptroller, or other principal officer of 
 citstoms or of navigation laws ; or if there is no such officer resident at 
 such port or place, the governor, lieutenant-governor, or other person 
 administering the government of the i^ossession in which such port or place 
 is situate («). 
 
 31. The governor, lieutenant-governor, or other person administering the govern- 
 ment in any British possession where any sliip is registered under the authority of 
 this Act, .shall, Avith regard to the performance of any act or thing relating to the 
 registry of a ship or of any interest therein, be considered in all respects as occupying 
 the place of the commissioners of customs ; and any British consular officer shall, 
 in any place where there there is no justice of the]3eace, be authorized to take any 
 declaration hereby requii-ed or permitted to be made in the presence of a justice 
 ofthe peace. 
 
 32. Every registrar shall keep a book, to be called " The Eegister Book," and 
 enter therein the particitlars heremafter required to be registered. 
 
 33. The port or place at which any British ship is registered for the time being 
 shall be considered her port of registry or the port to which she belongs. 
 
 34. [Repealed by 34 & 35 Yict. c. 110, s. 12.] 
 
 35. Every application for the registry of a shi]) slndl in the case of iadi\dduals 
 be made by the person requiring to be registered as owner, or by some one or 
 more of such persons if more than one, or by his or their duly authorized agent, 
 and in the case of bodies corporate by their duly authorized agent ; the authority 
 of such agent, if appointed by individuals, to be testified by some writing imder 
 the hands of the appointers, and if appointed by a body corporate, by some instrti- 
 ment under the common seal of such body corporate. 
 
 36. Before registry, the ship shall be surveyed by a person duly appointed 
 under this Act ; and such surveyor shall grant a certificate in the form marked A. 
 in the schedule hereto, specifying her tonnage, build, and such other particulars 
 descriptive of the identity of the ship as may from time to time be required liy 
 the Board of Trade ; and such certificate shall' be delivered to the registrar before 
 registry. 
 
 37. The following rules shaU be observed -with respect to entries in the register 
 book ; (that is to .say,) 
 
 (1.) The property in a ship shall be divided into 64 shares : 
 
 (2.) Subject to the provisions with respect to joint owners or OAATiers by trans- 
 mission hereinafter contained, not more than 32 (h) individuals shall be 
 entitled to be registered at the same time as owners of any one ship ; 
 but this rule shall not aft'ect the beneficial title of any number of per.sons 
 or of any company represented by or claiming under or through any 
 registered owner or jomt owner : 
 
 (3.) Xo person .shall be entitled to be registered as owner of any fractional part ■ 
 of a share in a ship ; but any number of persons, not exceeding live, 
 may be registered as joint owners of a ship or of a share or shares 
 therein : 
 
 (4.) Joint owners shall be considered as constituting one person only as regards 
 
 (a) As to regi>t ration of British ships in British 
 possessions, sec 32 Vict. c. 11. s. 6, post. In foreism 
 ports, see 36 & 37 Vict. c. 85. s. 29. As to regis- 
 tering name of managing owner of ship, "see 
 S9 & 40 Tict. c. 80, s. 36. iwst. As to marking 
 
 British ships, see 36 & 37 Vict. c. S3, s. 3. As to 
 marking deck and load lines, sec S9 & 40 Vict. c. 80, 
 ss. 25-28. As to names of ships, see 34 & 35 Yicc, 
 C. 110, s. e ; 36 & 37 Vict. c. 85, s. .5. 
 (b) Now 64 ; see 43 & 44 Yict. c. 18.
 
 17 & 18 vioT. c. 104 643 
 
 the foregoing rule relating to the number of persons entitled to be regis- 
 tered as owners, and shall not be entitled to dispose in severalty of any 
 interest in any ship or in any share or shares therein in resjoect of which 
 they are registered : 
 (5.) A body corporate may l^e registered as owner by its corporate name : 
 
 38. No person shall be entitled to be registered as owner of a ship or ^iiy Ccclaraf on of 
 share therein until he has made and subscribed a declaration in the form o\\nership iiy 
 marked B, in the schedule hereto, referring to the ship as described in the ""livkluai 
 certificate of the surveyor, and containing the following particulars ; (that is to say,) *^^'^'^^' 
 
 (1.) A statement of his ciualification to lie an owner of a share in a British 
 
 ship : 
 (2.) A statement of the time when and tlie place where such ship was built, or 
 (if the sliip is foreign-built, and the time and place of building not 
 known,) a statement tlxat she is foreign-biiilt, and that he does not know 
 the time or place of her building ; and in addition thereto, in the case of 
 a foreign ship, a statement of her foreign name, or (in the case of a ship 
 condemned) a statement of the tinie, place, and court at and by which 
 she was condemned : 
 (3.) A statement of the name of the master : 
 (4.) A statement of the number of shares in such ship of which he is entitled 
 
 to be registered as owner : 
 (5.) A denial that, to the best of his knowledge and belief, any uncjualified 
 person or body of persons is entitled as owner to any legal or beneficial 
 interest (b) in such ship or any share therein : 
 The above declaration of o\raership sliall be made and subscribed in the presence 
 of the registrar if the declarant reside within five miles of the custom-house of the 
 port of registry, but if beyond that distance in the presence of any registrar or of 
 any justice of the peace (c). 
 
 39. Xo bod J' corporate shall be entitled to be registered as owner of a ship or of ^^-nerfhin^ ^^ 
 any share therein until the secretary or other duly appointed public officer of such by body 
 body corporate has made and subscribed in the presence of tlie registrar of the corporate 
 port of registry a declaration in the form marked C. in the schedule hereto, refer- 
 ring to the ship as described in the certificate of the surveyor, and containing the 
 following particulars ; (that is to say,) 
 
 (1.) A statement of such circumstances of the constitution and business of such 
 body corporate as prove it to be cpialified to own a British ship : 
 . (2.) A statement of the time when and the place where such ship was built, or 
 (if the ship is foreign-built, and the time and place of buildiiig unknown,) 
 a statement that she is foreign-built, and tliat he does not know the time 
 or place of her building ; and, in addition thereto, in tlie case of a foreign 
 sliip, a statement of her foreign name, or (in the case of a ship con- 
 demned) a statement of the time, place, and court at and by wliich she was 
 condemned : 
 
 (3.) A statement oi the name of the master : 
 
 (4.) A statement of the number of shares in such ship of \\-hich such body cor- 
 porate is owner : 
 
 (5.) A denial that, to the best of his knowledge and belief, any unc[ualified 
 person or body of persons is entitled as owner to any legal or beneficial 
 interest in such ship or any share therein. 
 
 40. Upon tlie first registry of a ship there shall, in addition to the declaration Evidence to be 
 of ownership, be produced the following evidence ; (that is to say,) ^?^'°^^."^';'^ °'^ 
 
 (1.) In the case of a British-built ship, a certificate (which the builder is hereby ° "^ - • 
 required to grant under his hand) containing a true account of tlie 
 proper denomination and of the tonnage of such ship as estimated by 
 liini, and of the time when and of the place where such ship was built, 
 together with the name of the party (if any) on whose account he has 
 built the same, and, if any sale or sales have taken place, the bill or bills 
 of sale under which the sliip or share therein has become vested in the 
 party recpiiring to be registered as owner : 
 
 (c) See sect. 43, -jjost, p. 644 ; 26 & 26 Vict. c. 63, (d) For penalty for fal>e declaration, see 
 
 s. 3, post; Liverpool Borough Bank v. Turner. sect. 103, sub-sect 4, post, p. 060; 18 6; 19 Vict. 
 
 IJohn. & H. 169. c.9],s. P, 2J05^ 
 
 2 T 2
 
 644 
 
 M. S. ACT, 1854, TAET 2, 
 
 renaltv on 
 builder for 
 certiticate. 
 
 Particular: 
 entry in rc; 
 book. 
 
 No not ice t 
 of trusts. 
 
 (2.) In the ccise of a foreign-lniilt ship, the same evidence as in the case of a 
 British -hnilt ship, unless the person ref|niring to be registered as owner, 
 or, in the case of a body corporate, the duly appointed officer, declares 
 that tlie time or place of her building is \tnknown, or that the builder's 
 certificate cannot be procured, in Avhicli case there shall be ref^uired only 
 the bill or bills of sale under -which the ship or share therein became 
 vested in the party requii'ing to be registered as OAraer thereof : 
 (;3.) In the case of a ship condemned l\v any competent court, an official copy of 
 
 the condeimiation of such ship. 
 41. If any builder wilfully makes a false statement in any certificate hereby 
 false required to be granted by him he shall for every such offence inciu? a penalty not 
 
 exceeding £'100. 
 of 42. As soon as the foregoing requisites to the due registry of a ship have been 
 gister complied with, the registrar shall enter in the register book the following parti- 
 culars relating to such ship ; (that is to say,) 
 
 (1.) The name of the ship and of the port to which she belongs : 
 (2.) The details as to her tonnage, build, and description, comprised in the certi- 
 ficate herein-before directed to be given by the surveyor : 
 (3.) The several particulars as to her origin stated in the declaration or declara- 
 tions of ownership : 
 (4.) The names and descriptions of her registered OA\iier or owners, and if there 
 is more than one such owner, the projiortions in which they are interested 
 in such ship, 
 akcn 43. Ko notice of any trust, express, implied, on constructive, shall be entered 
 in the register book, or receivable bj' the registrar ; and subject to any rights and 
 powers appearing by the register book to be vested in any other party, the regis- 
 tered owner of any ship or share therein shall have power absolutely to dispose in 
 manner hereiu-after mentioned of such ship or share, and to give eftectual receipts 
 for any money paid or advanced by way of consideration (a). 
 
 Certificate 
 of licdistrij, 
 
 CortiQcate of 
 registi-y to be 
 granted. 
 
 Cliange of 
 owners to be 
 endorsed on 
 certificate of 
 registry. 
 
 Certificate of Beyistnj, 
 
 44. Upon the completion of the registry of any ship the registrar shall grant a 
 certificate (/*) of registry in the form marked D. in the scliedule hereto, comprising 
 the following particulars ; (that is to say,) 
 
 (1.) The name of the ship and of the port to wliich she belongs : 
 
 (2.) The details as to her tonnage, build, and description comprised in the 
 certificate herein-before directed to be given by the sun'eyor : 
 
 (3.) The name of her master : 
 
 (4.) The several particulars as to her origm stated in the declaration or declara- 
 tions of ownership : 
 
 (5.) The names and descriptions of her registered owner or owners, and if there 
 is more than one such owner, the proportions in which they are respec- 
 tive!)^ interested, indorsed upon sudi certificate. 
 
 45. "Whenever any change takes place in tlie registered ownersliij) of any ship, 
 then, if such change occitrs at a time when the ship is at her port of registry, tlie 
 master shall forthwith deliver the certificate of registry to the registrar, and he 
 shall indorse thereon a memnranditm of such change ; but if such change occurs 
 during the absence of the ship from her port of registry, then upon her first return 
 to sucli port the master shall deliver the certificate of registry to the registrar, and 
 he shall indorse thereon a like memorandum of the change ; or if she previously 
 arrives at any port Avhere there is a British registrar, such registrar shall, upon 
 lieing achised by the registrar of her port of registry of the change ha^dng taken 
 place, indorse a like memorandum thereof on the certificate of registry, and may 
 for that purpose require the certificate to be delivered to hiin so that tlie shij) be 
 
 (a) See 25 & 26 Vict. c. 63. .=. 3. post. Stapleton 
 \. }Taiimen,2 11. & C. 918. Laconx. Liffcv,d2 
 h. J. Ch. 23. 
 
 (b) As to grant of terminable certificate of 
 registry, subject to conditions in Colonies, see 
 31 & 32 Vict. c. 129, ss. 1, 2.
 
 17 & 18 VICT. c. 104. 645 
 
 jiot tliereljy detained ; and any master wlio fails to deliver to the registrar the 
 certificate of registry as hereinbefore rec^uired shall incur a penalty not exceeding 
 £100. 
 
 46. Whenever the master of any British registered ship is changed the follow- Change of 
 ing persons, that is to say, if such change is made in consequence of the sentence endorsod ou 
 of any naval court, the presiding officer of such court, but if the change takes certificate of 
 place from any other cause, the registrar, or if there is no registrar the British I'csistry^ 
 consular officer resident at the port where such change takes place, shall indorse 
 
 on the certificate of registry a memorandum of such change, and subscribe his 
 name to such indorsement, and forthwith report the change of masters to the 
 [commissioners of customs] (c) in Lundon ; and the officers of customs at any 
 port situate within H. M.'s dominions may refuse to admit any person to do any 
 act at such port as master of any British shii), unless his name is inserted in or 
 endorsed upon the certificate of registry of such ship as the last appointed master 
 thereof. 
 
 47. The registrar may, with the sanction of the commissioners of customs, (c) Power to grant 
 upon the delivery up to him of the former certificate of registry, grant a new "°^^ ccrtiticatc 
 certificate in the place of the one so delivered up. 
 
 48. In the event of the certificate of registry of any ship being mislaid, lost, or Pi'ovisiou iu 
 destroyed, if such event occurs at any port in the U. K., the ship being registered certiflcatct 
 in the U. K., or at any port in any British possession, the ship being registered in 
 
 the same British possession, then the registrar of her port of registry shall grant a 
 new certificate of registry in lieu of and as a substitute for her original certificate 
 of registry ; but if such event occiu's elsewhere, the master or some other person 
 having knowledge of the crrcTmistances shall make a declaration before the registrar 
 of any port having a British registrar at Avhich such ship is at the time, or first 
 arrives after such mislaying, loss, or destruction ; and such declaration sliall slate 
 the facts of the case, and the names and descriptions uf the registered owners of 
 such slii]i, to the best of the declarant's knowledge and belief ; and the registrar 
 shall thereupon grant a provisional certificate as near to the form appointed Ijy this 
 Act as circumstances permit, and shall insert therein a statement of the circum- 
 stances under which such provisional certificate is granted. 
 
 49. Every such provisional certificate shall, within ten days after the first sub- Proyisiouai 
 sef|uent arrival of the ship at her port of discharge in the U. K., if registered in ^oiiYei"[f „p '^° 
 the U. K., or if registered elsewhere, at her port of discharge in the British posses- 
 sion within which her port of registry is situate, be delivered up to the registrar 
 
 thereof, who shall thereupon grant a new one, as near to the form appointed by 
 this Act as circumstances permit ; and if the master neglects to deliver up such 
 certificate within such time he shall incur a penalty not exceeding £50. 
 
 50. The certificate of registry shall be used only for the lawful navigation of *^'":':*;°'^y °^ 
 the ship, and shall not be subject to detention by reason of any title, lien, (cl) charge, 
 
 or interest whatsoever, which any owner, mortgagee, or other person may have or 
 claim to have on or in the ship described in such certificate ; and if any person Delivery of 
 whatever, whether interested or not in the ship, refuses on request to deliver up be'renuU-ed""^ 
 such certificate when in his possessi(jn or iinder his control to the person for the 
 time being entitled to the custody thereof for the purposes of such lawful naviga- 
 tion as aforesaid, or to any registrar, officer of the custonis, or other person 
 legally entitled to require such delivery, it shall be lawful for any justice, by 
 warrant under his hand and seal, or for any court capable of taking cognizance of 
 such matter, to cause the person so refusing to appear (c) before him and to be 
 examined touching such refusal ; and unless it is proved to tlie satisfaction of Penalty for 
 such justice or court that there was reasonable cause for such refusal, the oftender detention. 
 shall incur a penalty not exceeding £100 ; but if it is made to appear to such 
 justice or court that the certificate is lost, the party complained of shall be dis- 
 charged, and such justice or court shall thereupon certify that the certificate of 
 registry is lost. 
 
 51. If the person charged with such detainer or refusal is proved to have Mode of prc- 
 absconded, so that the warrant of the justice or process of the court camiot be ?®"''"f' '5 !,''".' 
 served upon him, or if he persist in his refusal to deliver the certificate, such abscoiTd, ' 
 
 ff) Now registrar-general of shipping and (d) Gibxon v. Tn[/o, G Hare, 112. 
 
 seamen, 35 & 36 Yict, c. 73, b. 4, post, {e) Arkel v. SenxeU, 27 L. J. M, C. 110,
 
 646 
 
 M.- S. ACT, 1854, TAET 2, 
 
 Penalty for 
 ii>ing uuproiicr 
 ccrtittcate. 
 
 Certificate of 
 .ship lost, or 
 ceasing to be 
 British, to he 
 delivered uii. 
 
 Provisional cer- 
 tificate for ship 
 becoming vested 
 in British owners 
 at foreign port. 
 
 ju.sticc or court sliall certify the iact, and llie same proceedings may then be taken 
 as in the case of a certificate of registry mishiid, lost, or destroyed, or as near 
 thereto as circnmstances permit. 
 
 52. If the master or owner of any ship uses or attempts to use for the naviga- 
 tion of siich sliip a certificate of registry not legally granted in respect of such 
 .ship, he shall be guilty of a misdemeanor, and it shall be lawful for any com- 
 missioned officer on full pay in the military or naval service of H. M., or any 
 British officer of customs, or any British con.sular officer, to seize and detain siich 
 ship, and to bring her for adjudication before the High Court of Admiralty in 
 England or Ireland, or any court having Admiralty jurisdiction in H. M.'s 
 dominions; and if such court is of opinion that .such use or attempt at use has 
 taken place, it shall pronounce such sliip, with her tackle, apparel, and fiu'iiiture, 
 to be forfeited to H. M., and may award such portion of the proceeds arising 
 from tlie sale of such sliip as it may think just to the officer so bringing in the 
 .same for adjudication. 
 
 53. If any registered ship is either actually or constructively lost, taken by the 
 enemy, lairnt, or broken up, or if by reason of a transfer to any persons not quali- 
 fied to be 0"\™ers of British ships, or of any other matter or thing, any such ship 
 as aforesaid ceases to be a British ship, every person who at the time of tlie 
 occurrence of any of the aforesaid events owns such ship or any share therein shall, 
 immediately upon obtaining knowledge of any such occurrence, if no notice 
 thereof has already been given to the registrar at the port of registry of such ship, 
 gi^•e such notice to liim, and he shall malce an entry thereof in his register book ; 
 and, except in cases where the certificate or registry is lost or destroyed, the 
 master of every shij) so circumstanced as aforesaid shall immediately, if such event 
 occurs in port, but if the same occurs elsewhere, then within ten days after his 
 aiiival in port, deliver the certificate of registiy of such ship to the registrar, or, 
 if there he no registrar, to the Briti.sh con,sular officer at .such port, and sucli regis- 
 trar if lie is not himself the registrar of her port of registry, or .such Briti.sh consular 
 officer, .shall forthwith forward the certificate so delivered to him to the regi.strar 
 of tlie port of registry of the ship ; and every owner and master who without 
 reasonable cause nialvcs default in obeying the j^rovisious of this section .sliall, for 
 each ofl'ence, incur a penalty not exceeding 100/. 
 
 54. If any ship becomes the property of persons cj^ualified to be owners of 
 British ships at any foreign port, the British consular officer re.sideut at such port 
 may grant the master of such ship upon his application, u provisional certificate 
 stating, — 
 
 The name of the ship ; 
 
 The time and place of her pxirchase, and the names of her purchasers ; 
 
 The name of lier master ; 
 
 The best particulars as to her tonnage, build, and description that he is able to 
 obtain ; 
 and he sliall forward a copy of such certificate, at the fii-st convenient opportunity, 
 to the [commissioners of customs] («) in London : the certificate so granted shall 
 possess the same force as a certificate of registry until the expiration of six mouths, 
 or until such earlier time as the .ship ariives tit some port ■\^■he^e there i.s a British 
 registrar ; but upon the expiration of such period, or upon arri-\-al at such port, 
 shall be void to all intents. 
 
 Transfers and Transmissions. 
 
 Trans/ers atid 
 Transmissions. 
 
 Transfer of , si) ips b'h A legislei'ed .ship or any share therein, when disposed of to per.sons quali- 
 or shares therein, fi^d to be owners of British ships, shall (h) be transferred by bill of sale(c) ; and 
 such bill of sale shall contain such desciiption of the ship as is contained in the 
 certificate of the surveyor, or such other description as may be sufficient to identify 
 the ship to the satisfaction of the registrar, and shall be according to the form 
 market! E. in the schedule hereto, or as near thereto as circumstances permit, and 
 
 (a) XoT\- Rep;i>li-nr-General of Shipping and 
 Seamen, 35 & Sti Vict. c. 73, .«. 4, post. 
 
 ( b) .See the Liverpool Borough Bankr, Turner) 
 2 De G. F. & J. oO 
 
 (c) See 18 & 19 Vict. c. 01. c 10, 2W<t as to 
 shares in shiiia being included in the word 
 " stock," as defined by the Trustee Act, 1860.
 
 17 & 18 VICT. c. 104. 6i7 
 
 .shall he executed by the transferrer in the presence of and be attested by one or 
 more witnesses. 
 
 56. No individual shall be entitled to be registered as transferree of a ship or Declaratiou to 
 any share therein until he has made a declaration in the foi-ni marked F. in the tn^^sfe^i-e^ 
 schedule hereto, stating his qualification to be registered as owner of a share in a ' 
 British ship, and containing a denial similar to the denial hereinbefore rec|uired 
 
 to be contained in a declaration of ownership by an original owner ; and no body 
 corporate shall be entitled to be registered as transferree of a ship or any share 
 therein until the secretary or other duly appointed public officer of such body 
 corporate has made a declaration in the form marked G. in the schedule hereto, 
 stating the name of such body corporate, and such circumstances of its constitution 
 and business as may prove it to be rjaalified to own a British ship, and containing 
 a denial similar to the denial hereinlDefore req^uired to be contained in a declara- 
 tion of ownership made on behalf of a body corporate : in the case of an individual, 
 the above declaration shall be made, if he reside within five miles of the custom- 
 house of the port of registry, in the presence of the registrar, l^ut if beyond that 
 distance in the presence of any registrar or of any justice of the 2:ieace : in the case 
 of a body corporate, the declaration shall be made in the presence of the registrar 
 of the port of registry. 
 
 57. Every bill of sale for the transfer of any registered ship, or of any share Registration of 
 therein, when duly executed, shall be produced to the registrar of the port at transfer, 
 wliiclr the ship is registered, together Avith the declaration hereinbefore required 
 
 to be made by a transferree ; and the registrar shall thereupon enter in the register 
 book the name of the transferree as owner of the ship or share com2)rised in such 
 bill of sale, and shall endorse on the bill of sale the fact of such entry having been 
 made, with the date and hour thereof ; and all bills of sale of any shi]i or shares 
 in a ship shall be entered in the register l:)ook in the order of their production to 
 the registrar. 
 
 58. If the property in any ship or in any share therein becomes transmitted in Transmission of 
 consequence of the death or bankruptcy or insolvency of any registered owner, or ]^}^]^^y^^^^n^''Ql}' 
 in consequence of the marriage of any female registered owner, or by any lawful marriage, 
 means other than by a transfer according to the provisions of this Act, such 
 transmission shall be authenticated by a declaration of the person to whom such 
 
 property has been transmitted, made in the form marked H. in the schedule 
 hereto, and containing the several statements hereinbefore required to be con- 
 tained in the declaration of a transferree, or as near thereto as circumstances 
 permit, and, in addition, a statement describing the manner in which and the 
 party to A\-hom such property has been transmitted ; and such declaration shall Ije 
 made and subscribed, if tlie declarant resides at or within five miles of the custom- 
 house of the port of registry, in the presence of the registrar, but if beyond that 
 distance in the presence of any registrar or of any justice of the peace. 
 
 59. If such transmission has taken place by virtue of the bankruptcy or insol- Proof of trans- 
 vency of any registered owner, the said declaration shall be accompanied by sucli J",''^tjf'^ ^J^^^!''^'^" 
 evidence as may for the time Ijeing be receivable in courts of justice as proof of riagefwmro'r on 
 the title of parties claiming under any liankrnptcy or insolvency : and if such intestacy, 
 transmission has taken place by virtue of the marriage of a female owner, the said 
 declaration shall be accompanied by a cojiy of the register of such marriage or 
 
 other legal evidence of the celebration thereof, and shall declare the identity of the 
 said female owner ; and if such transmission has taken place liy virtue of any 
 testamentary instrument or by intestacy, then in England, Wales, and Ireland the 
 said declaration shall be accompanied by the probate of the will or the letters of 
 administration or an official extract therefrom, and in Scotland or in any Britisli 
 possession by the will or any copy thereof that may be evidence by the laws of 
 Scotland or of such possession, or by letters of administration or any copy thereof, 
 or by such other document as may by the laws of Scotland or of such possession 
 be receivable in the courts of judicature thereof as i^roof of the person entitled 
 upon an intestacy. 
 
 60. The registrar, upon the receipt of such declaration so acconrpanied as afore- Registration of 
 said, shall enter the name of the person or persons entitled under such transmis- p}^a"4?""'^ 
 ■sion in tiie register book as owner or owaiers of the ship or share therein in respect 
 
 of which stich transmission has taken place ; and such persons, if more than one, 
 ahall, however numerous, l)c considered as one person only as regards the rule
 
 G48 M. s. ACT, 1854, part 2, 
 
 liereiiibefore contained relating to the number of persons entitled to be registered, 
 
 as oAvners. 
 
 Kegistiar In 61. Of tlie documents liereby required to be produced to tlie registrar he shall 
 
 retain ccitaiu retain in his possession tlie following ; that is to say, the sm-veyor's ceilificate, 
 
 cvicleucc. ^i^g buildei''s certificate, the copy of the condemnation, and all declarations of 
 
 ownership. 
 Uuqiiaiificrt 62. Whenever any property in a ship or share in a ship becomes vested by 
 
 by mm"milsiou transmission on the death of any owner, or on the marriage of any female owner, 
 may apply to in any person not qualified to be the owner of British ships, it shall be lawful, if 
 Court for sale of g^^.}^ j^jjip j^; registered in England or Ireland for the Coiul of Chancery (a), if in 
 Scotland for the Court of Session, or if in any British possession for any court 
 possessing the principal civil jtirisdiction within such possession, upon an applica- 
 tion made by or on behalf of such unqualified person, to order a sale to be made 
 of the property so transmitted, and to direct the proceeds of such sale, after 
 deducting the exj)enses thereof, to l;)e paid to the person entitled luider such trans- 
 mission, or otherwise as the court may direct ; and it shall be in the discretion of 
 any such court as aforesaid to make or refuse any such order for sale, and to 
 annex thereto any terms or conditions, and to require any evidence in support of 
 such application it may think fit, and generally to act in the premises in such 
 manner as the justice of the case requires. 
 Ordcrtobemade 63. Every order for a sale made by such court as aforesaid shall contaiji a 
 by Court. declaration vesting the right to transfer the ship or share so to be sold in some 
 
 jierson or persons named by the court, and such nominee or nominees shall there- 
 upon be entitled to transfer such .ship or share in the same manner, and to the 
 same extent, as if he or they were the registered o-^^iier or owners of the same ; and 
 every registrar shall obey the requisition of such nominee or nominees as aforesaid 
 in respect of any transfer to the same extent as he would be compellable to obey 
 the recpiisition of any registered OA\'ner or owners of such ship or shai'o. 
 Limit of time for 64. Eveiy such application as aforesaid for sale shall be made witliin four weeks 
 application. after the occurrence of the event on which such transmission has taken place, or 
 within such further time as such court as aforesaid may allow, such time not in 
 any case to exceed the space of one year from the date of such occurrence as afore- 
 said ; and in the event of no such application being made within such period as 
 aforesaid, or of such court refusing to accede thereto, the ship or share so transmitted 
 shall thereupon be forfeited in manner hereinafter (h) drrected wdth respect to 
 interests acquired by unqualified owners in ships using a British flag and assuming 
 the British character. 
 Power of Courts 65. It shall be la^vful in England or Ireland for the Court of Chancery (c), in 
 transfers." Scotland fiu' the Court of Session, in any British possession for any court possess- 
 
 ing the principal ciAil jmisdiction wdthin such jDossession, without prejudice to 
 the exercise of any other power such court may possess, upon the summary appli- 
 cation of any interested person, made either by petition or otherwise, and either 
 ex parte or iipon service of notice on any other ])erson, as the court may direct, to 
 issue an order prohibiting for a time to be named in such order iiny dealing with 
 such ship or share ; and it shall be in the discretion of such court to make or 
 refuse any such order, and to ainiex thereto any terms or conditions it may think 
 lit, and to discharge such order when granted with or without costs, and generally 
 to act in tlie premises in such manner as the justice of the case requires ; and 
 cA'ciy registrar, without being made a party to the proceedings, upon being served 
 with suc^i order, or an official copy thereof, shall obey the same. 
 
 Mortgages. 
 
 Mortgages. 
 
 66. A registered ship or any share therein may be made a security for a loan 
 ^ or other valuable consideration ; and the instrument creating such security, 
 shi'ps'and scares hereinafter termed a " mortgage," shall (f?) be in the form marked I. in the schedule 
 therein. 
 
 («) Also the Admiralty Division of the High ,SeeA')f7(0?f(* v.D)-aca(7(!S,45 L. J.Prob.4.5, where 
 
 Court of Justice, see 24 & 2-5 Vict. c. 10. s. 12. pv)<t. since the Judicature Act the Court of Pi-obate 
 
 (b) See sees. 103—106. poxt, pp. 655. 656. made an order under this section. 
 
 (f) Also the Admiralty Division of the High. ((/) See Liirrpoul Borough Baitk v. Turner, 
 
 Court of Justice, 24 & 25 Yict, c. 10, s. 12, post 1 John. & H. 109 ; 2 De G. F. & J. 502.
 
 17 & 18 VICT. 0. 104. 649 
 
 lierelo, or as near thereto as circumstances permit ; and on the production of such 
 instrument the registrar of the port at which the ship is registered .shall record 
 the same in the register book. 
 
 67. Every such mortgage shall he recorded by the registrar m the order of time irortg;igcs to be 
 in Avhich the same is produced to him for that purpose ; and the registrar shall, I'^si-^tfi-cd in 
 by memorairdum under his hand, notify on the instrument of mortgage that the product iou."° " 
 same has been recorded by him, stating the date and hour of such record. 
 
 68. Whenever any registered mortgage has been discharged, the registrar shall, -"^/^^VJ ^'^ '^''' 
 on the production of the mortgage deed, with a receipt for the mortgage money ^ai-ef'^° ^^^ " 
 indorsed thereon, duly signed and attested, make an entry in the register book to ° ° 
 
 the effect that such mortgage has been dischai-ged ; and upon such entry being 
 made the estate, if any, which passed to the mortgagee shall vest in the same 
 person or persons in whom the same would, having regard to intervening acts and 
 circumstances, if any, have vested if no such mortgage had ever been made. 
 
 69. If there is more than one mortgage registered of the same ship or share Priority of 
 therein, the mortgagees shall, not\\'ithstanding any express, implied or construe- "loi'tsiisesi. 
 ti-\'e notice, be entitled in priority one over the other according to the date at 
 
 Avhich each instrument is recorded in the register books, and not according to the 
 date of each instrument itself. 
 
 70. A mortgagee shall not by reason of his mortgage be deemed to be the owner Mortgagee ma 
 of a ship or any share therein, nor shall the mortgagor be deemed to have ceased '■'^ ^° ciccmcd 
 to be owner of such mortgaged ship or share, except in so far as may be necessary 
 
 for making such ship or share available as a security for tlie mortgage debt. 
 
 71. Every registered mortgagee shall have ])ower absolutely to dispose of the Mortgagee to 
 
 of 
 
 ship or share in respect of which he is registered, and to give effectual receipts for ^';y° P*^"*-'!" 
 the purchase money ; but if there are more persons than one registered as mort- "'"' '^' 
 gagees of the same ship or share, no subsequent mortgagee shall, except under the 
 order of some court capable of taking cognizance of such matters, sell such ship or 
 share without the concurrence of every prior mortgagee. 
 
 72. No registered mortgage of any ship or of any share therein shall be affected Rights of mori- 
 by any act of bankruptcy committed by the mortgagor after the date of the record f,'fj'-'°,'b"^.''^-. 
 of such mortgage, notwithstanding such mortgagor at the time of his becoming oVbankni'ptc/of 
 bankrupt may have in his possession and disposition and be reputed owner of mortgagor, 
 such ship or share thereof ; and such mortgage shall be preferred to any right, 
 
 claim, or interest in such ship or any share thereof which may belong to the 
 assignees of such bankrupt. 
 
 73. A registered mortgage of any ship or share in a ship may be transferred to Transfer of 
 any person, and the instrument creating such transfer shall be in the form marked mortgages. 
 K. in the schedule hereto ; and on the production of such mstrument the registrar 
 
 shall enter in the register book the name of the transferree as mortgagee of the 
 ship or shares therein mentioned, and shall by memorandum tinder his hand 
 record on the instrument of transfer that the same has been recorded by him, 
 stating the date and lioiu' of such record. 
 
 74. If the interest of any mortgagee in any ship or in any share therein Itecomes Transmission of 
 transmitted in conseciuence of death, bankruptcy, or insolvency, or in conseiiuence mtcrcst of mort- 
 
 !■ ,1 • V r 1 / 1 1 r 1 ,1 ,1^ 1 gagee by death, 
 
 01 the marriage of any female mortgagee, or by any lawiul means other than by bankruptcy, or 
 
 a transfer according to the provisions of this Act, such transmission shall be marriage, 
 authenticated by a declaration of the person to whom such interest has been 
 transmitted, made in the form marked L. in the schedule hereto, and contaimng 
 a statement describing the manner in which, and the party to whom such pro- 
 perty has been transmitted ; and such declaration shall be made and subscribed, 
 if the declarant resides at or within five miles of the Custom-house of the port of 
 registry, in the presence of the registrar, but if beyond that distance in the 
 presence of any registrar or of any justice of the peace, and shall be accompanied 
 by such evidence as is hereinbefore recjuired to authenticate a corresponding 
 transmission of property from one registered owner to another. 
 
 75. The registrar, upon the receipt of such declaration and the production of Entry of tiatii- 
 sucli evidence as aforesaid, shall enter the name of the person or persons entitled ^}l^'^'^ mort- 
 under such transmission in the register book as mortgtigee or mortgagees of the °' ° 
 
 ship or share in respect of Avhich such transmission has taken place.
 
 650 
 
 M. S. ACT, 1854, PART 2, 
 
 Ccrliftcaks of 
 
 Murt'iofjcuiul 
 
 iSale, 
 
 rowers of mort- 
 gage auil sale 
 may be con- 
 ferred by certifi- 
 cate. 
 
 riequi.-iies for 
 ccrtificaies of 
 mortgaw aud 
 sale. 
 
 Certificates of Mortfjage and Sale. 
 
 Ee^triciions ou 
 certificates of 
 mortgage and 
 sale. 
 
 Fonns of ccrii- 
 licates of mort- 
 gage and sale. 
 
 Rules as to cer- 
 tificates of 
 mortgage. 
 
 76. Any registered owner, if clesLrous of disposing by way of mortgage or sale 
 of tlie ship or sliarc iii respect of Avliich lie is registered at any place out of the 
 coiiutry or possession in Avliich the port of registry of such ship is situate, may 
 apply to the registrar, who shall thereupon enable him to do so by gi-anting such 
 certiticat.es as are hereinafter mentioned, to be called respectively certificates of 
 mortgage or certificates of sale, according as they puq)ort to give a power to 
 mortgage or a power to sell. 
 
 77. Previously to any certificate of mortgage or sale being gi-anted, the applicant 
 shall state to the registrar, to be by him entered in the register book, the following 
 particulars ; (that is to say,) 
 
 (1.) The names of the persons by whom the power mentioned in such certificate 
 is to be exercised, and in the case of a mortgage the maximum amoimt 
 of charge to be created, if it is intended to fix any such maximum, and 
 in the case of a sale the minimum price at Avhich a sale is to be made, if 
 it is intended to fix any such minimum : 
 
 (2.) The specific place or places where such power is to be exercised, or if no 
 place be specified, then that it may be exercised anywhere, subject to the 
 provisions hereinafter contained : 
 
 (3.) The limit of time within which such power may be exercised. 
 
 78. !^\o certificate of mortgage or sale shall be granted so as to authorize any 
 mortgage or sale to be made — 
 
 At any place within the U. K., if the port of registry of the ship be situate in 
 the U. K. ; or at any place within the same British possession, if the port of 
 registry is situate within a British possession ; or 
 
 By any person not named in tlie certificate. 
 
 79. Certificates of mortgage and sale shall be in the forms marked respectively 
 M. and N. in the schedule hereto, and .shall contain a statement of. the several 
 particulars hereinbefore directed to be entered in the register book ; and, in 
 addition thereto, an enumeration of any registered mortgages or certificates of 
 mortgage or sale aftecting the ships or shares in. respect of wMch such certificates 
 are given. 
 
 80. The following rides shall be observed as to certificates of mortgage ; (that is 
 to say,) 
 
 (1.) The power shall be exercised in conformity with the directions contained 
 in the certificate : 
 
 (2.) A record of every mortgage made thereunder shall be indorsed thereon by 
 a registrar or Britisli consular oflicer : 
 
 (3.) No mortgage liond fide made thereunder shall be imiieached by reason of 
 the person by whom the power A\"as given dying Ijefore the making oi 
 such mortgage : 
 
 (4.) "Whenever the certificate contains a specification of the place or places at 
 wliich, and a liiiiit of time not exceeding tAvelye months TNithin which 
 the ])ower is to be exercised, no mortgage bond fide made to a mortgagee 
 Anthout notice shall be impeached \<x reason of the bankruptcy or insol- 
 Axney of the person liy whom the power was given : 
 
 (5.) Every mortgage wliich is so registered as aforesaid on the certificate shall 
 have piiority over all mortgages of the same ship or share created sub- 
 sef[uently to the date of the entry of the certificate in the register book ; 
 and if there be more mortgages than one so indoi-sed the resj^ective 
 mortgagees claiming thereunder shall, notwithstanding any express, 
 implied, or constructive notice, be entitled one before the other accord- 
 ing to the date at whicli a record of each instrument is indorsed on the 
 certificate, and not according to the date of the instrument creating the 
 mortgage*: 
 
 (6.) Subject to the foregoing rules every mortgagee whose mortgage is registered 
 on the certificate shall have the same rights and powers, and be subject 
 to the same liabilities as he would have had and been subject to if his
 
 I 
 
 17 & 18 VICT. G. 104. G51 
 
 moilgage liad been registered in the register book instead of on the 
 cei-titicate : 
 
 (7.) The discharge of any mortgage so registered on the certiticate maj^ he 
 endorsed thereon by any registrar or British considar officer, npou the 
 production of such evidence as is hereby rec^uired to be produced to the 
 registrar on the entry of the discharge of a mortgage in the register book ; 
 and upon such indorsement being made, the estate, if any, Avliich passed 
 to the mortgagee shall vest in the same person or persons in -whom the 
 same would, having regard to intervening acts and circumstances, if any, 
 have A'ested if no such mortgage had been made : 
 
 (8.) Upon the delivery of any certificate of mortgage to the registrar to ■whom 
 it was granted he shall, after recording in the register book in such 
 manner as to preserve its priority any unsatisfied mortgage registered 
 thereon, cancel such certificate, and enter the fact of such cancellation in 
 the register book ; and every certiticate so cancelled shall be void to all 
 intents. 
 
 81. The follomng rules shall be observed as to certificates of sale : (that is to Rules as to 
 X ° ^ ceitilicates of 
 
 ^^.^') , ., . , . . sale. 
 
 (1.) Xo such certificate shall be granted except for the sale of an entire slup : 
 
 (2.) The power shall be exercised in conformity with the directions contained 
 in the certificate : 
 
 (3.) Xo sale bond fide made to a purchaser fur valuable consideration shall be 
 impeached by reason of the person by whom the power was given dying 
 before the making of such sale ; 
 
 (4). WheneA'er the certificate contains a specification of the place or places 
 at which, and a limit of time not exceeding twelve months within 
 wlucli, the power is to be exercised, no sale bond fide made to a pur- 
 chaser for valuable consideration without notice shall be impeachect liy 
 reason of the bankruptcy or insolvency of the person by whom the jjower 
 was given : 
 
 (5.) Any transfer made to a person c[ualified to be the owner of British ships 
 shall be by bill of sale in the foi'ui hereinbefore mentioned, or as near 
 thereto as cii'cumstances permit : 
 
 (G.) If the ship is sold to a party qualified to hold British ships, the ship shall 
 be registered anew ; but notice of all mortgages enumerated on the 
 certificate of sale shall be entered in the register book : 
 
 (7.) Previously to such registry anew there shall be produced to the registrar 
 recjuired to make the same bill of sale l>y which the ship is transferred, 
 the certificate of sale, and the certificate of registry of such sliip : 
 
 (8.) Such last-mentioned registrar shall retain the certificates of sale and 
 registry, and after having indorsed on both of such instruments an . 
 entry of the fact of a sale having taken place, shall forward the said 
 certificates to the registrar of the port appearing on such certificates to 
 l>e the former port of registry of the ship, and such last-mentioned regis- 
 trar shall thereupon make a memorandum of the sale in his register book, 
 and the registry of the sliip in such book shall be considered as closed, 
 except as far as relates to any unsatisfied mortgages or existing certi- 
 ficates of mortgage entered therein : 
 
 (9.) On such registry anew the description of the ship contained in her original 
 certificate of registry may be transferred to the new register book, without 
 her being re-suneyed, and the declaration to be made by the puichascr 
 shall be the same as would be recjuired to be made by an ordinary 
 transferree ; 
 
 (10.) If the ship is sold to a party not qualified to be the owner of a British 
 ship, the Ijill of sale by which the ship is transferred, the certificate of 
 sale, and the certiticate of the registry shall be produced to some registrar 
 or consular officer, who shall retain the certificates of sale and registry, 
 and having indorsed thereon the fact of such ship having been sold to 
 persons not qualified to be owners of British ships aliall fonvard such 
 certificates to the registrar of tlie port appearing on the certificate of 
 registry to be the port of registry of such ship ; and such last-mentioned 
 registrar shall thereupon make a memorandum of the sale in his register
 
 652 
 
 31. S. ACT, 1854, PAET 2, 
 
 Power of com- 
 missioners of 
 customs ill 
 case of loss of 
 certificate of 
 mortgage or 
 sale. 
 
 llevocatiou of 
 ccrtilicates of 
 mortgage anil 
 sale. 
 
 book, and the registry of the f^hip in such hook shall he coiisideved as 
 tlo.seil, except so far as relates to any nnsatistied mortgages or existuig 
 cerliticates of mortgage entered therein : 
 
 (11.) If upon a sale being made to an unqualified person default is made' in the 
 production of such certificates as are mentioned in the last rule, such 
 unrj^ualified person shall be considered l^y British law as having aci[iured 
 no title to or interest in the sliip ; and fiu'ther, the party upon whose 
 apjilication such certificate was granted, and the persons exercising the 
 power, shall each incur a penalty not exceeding ^100. 
 
 (12.) If no sale is made in conformity with the certificate of sale such certificate 
 shaU be delivered to the registrar by whom the same was granted ; and 
 such registrar shall thereupon cancel it, and enter the fact of such cancel- 
 lation in the register book ; and every certificate so cancelled .shall he 
 void to all intents. 
 
 82. Upon proof at any time to the satisfaction of the commissioners of customs 
 that any certificate of mortgage or sale is lost or so obliterated as to be useless, and 
 that the powers thereby given have never been exercised, or if they have been 
 exercised then upon proof of the several matters and things that have been done 
 thereunder, it shall be lawful for the registrar, -nith the sanction of the said com- 
 missioners, as circumstances may rer|uire, either to issue a new certificate or to 
 direct such entries to be made in the register book, or such other matter or thing 
 to be done as might have been made or done if no such loss or obliteration had 
 taken place. 
 
 83. The registered owner for the time being of any shij) or share therein ia 
 respect of which a certificate of mortgage or sale has been granted, sjjecifjTng the 
 place or places where the poM-er thereby given is to be exercised, may, by an 
 instrument imder his hand made in the form 0. in the schedule hereto, or as near 
 thereto as circimistances permit, authorize the registrar l.iy whom such certificate 
 Avas granted to give notice to the registrar or consular officer, registrars or consular 
 officers, at such place or places, that such certificate is revoked ; and notice shall 
 be given accordingly ; and all registrars or consular officers receiving such notice 
 .shall record the same, and shall exhibit the same to all persons who may ajjply to 
 them for the pui^Dose of eft'ecting or obtaining a mortgage or transfer under the 
 said certificate of mortgage or .sale ; and after such notice has been so recorded the 
 said certificate shall, so for as concerns any mortgage or sale to be thereafter made 
 at such place, be deemed to be reA'oked and of no effect ; and every registrar or 
 considar officer recording any such notice shall thereupon state to the registrar by 
 Avhom the certificate was gi'anted, A\'hether any previous exercise of the power to 
 which such certificate refers has taken place. 
 
 Rcu'islrn onao, 
 
 and Transfer of 
 
 Reijistnj. 
 
 Altera! ion in 
 ship to ijc 
 registered. 
 
 JRegistry aneu; and Transfer of Eerjistry. 
 
 84. "Whenever any registered ship is so altered as not to coii'espond ■ttdth the 
 particulars relating to her tonnage or description contained in the register book, 
 then, if such alteration is made at a port where there is a registrar, the registrar 
 of such port, but if made elsewhere, the registrar of the first port having a regis- 
 trar at which the ship arrives after her alteration, shall, on application made to 
 him, and on the receipt of a certificate from the proper siu^eyor specifyuig the 
 'nature of such alteration, either retain the old certificate of registry ancl grant a 
 new certificate of registry containing a description of the shij) as altered, or nidorse 
 on the existing certificate a memorandum of such alteration, and subscribe his 
 name to euch indorsement ; and the registrar to whom such application as afore- 
 said is made, if he is the registrar of the port of registry of the ship, shall himself 
 enter in his register book the particulars of the alterations so made, and the fact 
 of such new certificate ha-^-ing been gi'anted or indorsement having been made, on 
 the existing certificate ; but if he is not such last-mentioned registrar, he shall 
 forthwith report such particulai's and facts as aforesaid, accompanied l)y the old 
 certificate of registiy in cases where a new one has been granted, to the registrar 
 ol the port of registry of the ship, who shall retain such old certificate (if any), 
 and enter sucli particulars and facts in his register book accordingly.
 
 17 & 18 VICT. c. 104. 653 
 
 85. WliGU the registrar to whom application is made in respect of any such On alteration, 
 alteration as aforesaid is the registrar of the port of registry, he may, if he thinks uify be'^^requh-ecl. 
 fit, instead of registering such alteration, require such ship to be registered anew 
 
 in manner herein-before directed on the first registry of a ship ; and if he is not 
 such registrar as lastly herein-before mentioned he may nevertheless require such 
 ship to be registered anew, but he shall in such last-mentioned case grant a pro- 
 visional certificate, or make a provisional indorsement of the alteration made in 
 manner herein-before directed in cases where no registry anew is required, taking 
 care to add to such certificate or indorsement a statement that the same is made 
 provisionally, and to insert in his report to the registrar of the port of registry of 
 the ship a like statement. 
 
 86. Every such provisional certificate, or certificate provisionally indorsed, shall Gi~'>nt of pro. 
 within 10 days after the first subsequent arrival of the ship at her port of discharge Reato in respect 
 in the U. K., if registered in the U. K., or if registered elsewhere, at her port of of alteration, 
 discharge in the British possession within which her port of registry is situate, be 
 delivered up to the registrar thereof, who shall thereujion cause such ship to he 
 registered anew in the same manner in all respects as hereinbefore required on 
 
 the first registry of any ship. 
 
 87. On failure of such registry anew of any ship or registry of alteration of any Consequence of 
 ship so altered as aforesaid, such ship shall be deemed not duly registered, and ye^^^t'el^aiicw. 
 shall no longer be recognized as a British ship. 
 
 88. If upon any change of ownership in any ship the o■^\^ler or owners desire '^^ "^'^f""" "^. , , 
 to have such ship registered anew, although such registry anew is not reqiiired by anp^- jj^ay ijc 
 this Act, it shall be lawful for the registrar of the port at which such ship is granted, if 
 already registered, on the delivery up to him of the existing certificate of registry, ^''''^i""'*^'^'- 
 
 and on the other requisites to registry, or sueh of them as the registrar thinks 
 material, being duly complied with, to make such registry anew, and grant a 
 certificate thereof. 
 
 89. The registry of any ship may be transferred from one port to another upon Registry ruay 
 the application of all parties appearing on the register to be interested in such fnnnp'ortWr 
 ship, whether as owners or mortgagees, such application to lie expressed by a port. 
 declaration in writing made and subscribed, if the party so required to make and 
 suliscribe the same resides at or within five miles of the custom-house of the 
 
 port from which such ship is to be transferred, in the presence of the registrar of 
 such i^ort, but if l^eyond that distance in the presence of any registrar or of any 
 justice of the peace. 
 
 90. Upon such application being made as is hereinbefore mentioned, and upon :Manner of 
 the delivery to him of the certificate of registrj^, the registrar of tlie port at H'ilisfrw^n), 
 which such ship is already registered shall transmit to the registrar of the port °' ' 
 
 at which such ship is intended to be registered notice of such application ha^dng been 
 made to him, togetlier witli a true copy of all particulars relating to such ship, 
 and the names of all the parties appearing by his book to be interested as owners 
 or mortgagees in such ship ; and such last-mentioned registrar shall, upon the 
 receipt of such notice, enter all such particulars and names in his book of registry, 
 and grant a fresh certificate of registry, and thenceforth such ship shall be con- 
 sidered as registered at and belonging to such last-mentioned port, and the name 
 of such last-mentioned port shall be substituted on the stern of such ship in lieu 
 of the name of the port previously appearing thereon. 
 
 91. The transfer of the registry of any ship in manner aforesaid shall not in Transfer of 
 any way aftect the rights of the several persons interested either as owners or }"^^^.*^7 ^}f_ * ^ 
 mortgagees in such ship, but such rights shall in all respects be maintained ancl OTTicrs!^ ^'^ 
 continue in the same manner as if no such transfer had been eftected. 
 
 Registry, Miscellaneous. Reoistry, 
 
 Miscellaneous, 
 
 92. Every person may, upon payment of a fee to be fixed by the [commissioners inspection of 
 of customs] {b) not exceeding one shilling, have access to the 'register book fm- the register books% 
 purpose of inspection at any reasonable time during the hours of oflicial attend- 
 ance of the registrar. 
 
 (a) As to the delivery of the certiflcate on (&) Kow registrar-general of shipping and 
 
 transfer of registry, sec 18 & 19 Yict. c. 91, s. 12, seamen, 35 & 36 Yict. c. 73, s. 4, post.
 
 654 
 
 M. S. ACT, 1854, PAPiT 2, 
 
 ludemnlty to 
 registrar. 
 
 Return to be 
 made by regis- 
 trars. 
 
 Applicntion of 
 lees. 
 
 Commissioners 
 of customs to 
 provide, and 
 with consent of 
 Board of Trade 
 may alter forms 
 and issno 
 instructions. 
 
 Poorer to 
 registrar to 
 dispense T\'iTli 
 declarations 
 and other 
 cridence. 
 
 Power for com- 
 missioners or 
 governor in 
 special cases 
 to grant a pass 
 to a ship not 
 registered. 
 
 Provision for 
 cases of infancy 
 or other Inca- " 
 paclty. 
 
 93. No registrar shall be liable to damages or otherwise for any loss accriiuig 
 to any person by reason of any act done or default made by him in his character 
 of registrar, unless the same has happened through his neglect or -wilful act. 
 
 94. Every registrar in the U. K. shall, at the expiration of every month, and 
 every other registrar shall without delay, or at such stated times as may be fixed 
 by the [commissioners of customs] («) transmit to the Custom-house in London (a) a 
 full return in such forms as [they] (6) may direct of all registries, transfers, transmis- 
 sions, mortgages, and other dealiiigs with shijjs which have been registered by or 
 communicated to them in their character of registrars, and the names of the 
 persons who have been concerned in the same, and such other particulars as may 
 be directed by the said commissioners («). 
 
 95. All fees authorized to be taken under the second part of this Act shall, 
 if taken in any part of the U. K., be applied in payment of the general expenses 
 of carrying into effect the purposes of such second part, or otherwise as the 
 treasury may direct ; but if taken elsewhere, shall be disposed of iji such way as the 
 executive government of the British possession in which they are taken ntay direct. 
 
 90. The commissioners of customs shall cause the several forms recptired or 
 authorized to be used by the second part of this Act, and contained in the 
 schedule hereto, to be .sitpplied to all registrars within H. M.'s dominions for 
 distribution to the several persons recpiiring to use the same, either free of charge, 
 or at such moderate prices as they may from time to time direct ; and the said 
 commissioners, with the consent of the Board of Trade, may from time to time 
 make such alterations in the forms contained in the schedule hereto as it may 
 deem requisite, but shall, liefore issuing any altered form give such pubUc notice 
 thereof as may be necessary in order to prevent inconvenience ; and the said 
 commissioners may also with such consent as aforesaid, for the purposes of carry- 
 ing into effect the provisions contained in the 2nd part of this Act, give such 
 instructions as to the manner of making entries in the registrar-book, as to the 
 execution and attestation of powers of attorney, as to any evidence to be required 
 for identifying any person, and generally as to any act or thing to be done in 
 pursuance of the 2ud part of tliis Act, as they may tliink fit. 
 
 97. ^lienever in any case in which under the second part of this Act any 
 person is required to make a declaration on behaK of himself, or of any body 
 corporate, or any evidence is required to be produced to the registrar, it is shown 
 to the satisfaction of the registrar that from any reasonable cause such person is 
 itnable to make the declaration, or that such evidence cannot be produced, it shall 
 be lawful for the registrar, with the sanction of the commissioners of customs, 
 and upon the production of such other e^ddence, and subject to such terms as 
 they may think fit, to dispense with any such declai'ation or evidence. 
 
 98. In cases where it appears to the commissioners of customs, or to the 
 governor or other persons administering the government of any British possession, 
 that by reason of special circtimstances it would be desirable that permission 
 should be granted to any British ship to pass, without being previously registered 
 from one port or place in H. M.'s dominions to any other port or place within the 
 same, it shall be lawful for such commissioners or governor or other person to 
 grant a i^ass accordingly, and such pass shall for the time and within the limits 
 therein mentioned have the same effect as a certificate of registry. 
 
 99. If any person interested in any ship or any share therein is, by reason of 
 infancy, lunacy, or other inability, incapable of making any declaration or doing 
 anything required or i)ermittted by this Act to be made or clone by such incapable 
 person in respect of registry, then the guardian or committee, if any, of such 
 incapable i^erson, or, if there be none, any party appointed 1 >v any court or judge 
 possessing jurisdiction in respect of the property of incapable persons, upon the 
 petition of any person on behalf of such inca])abie person, or of any other person 
 interested in the making such declaration or doing sitch thing, may make such 
 declaration, or a declaration as nearly corresponding thereto as circumstances 
 permit, and do such thing in the name and on behalf of such incapable })erson ; 
 and all acts done by such substitute shall be as effectual as if done by the person 
 for A^'hom he is substituted. 
 
 (o) Xow registrar-general of shipping 
 seamen, 35 & 36 Tict. c. 73; s. 4. 2)0St. 
 
 and 
 
 (h) "They" since 35 & 36 Yict. 73, s, 4. must be 
 read he. Sec note («) svjva.
 
 17 & 18 VICT. c. 104. 655 
 
 100. Whenever any person is l3eneficially interested (r) otherwise than by way of Liabilities of 
 mortgage, in any sliip or share therein registered in the name of some other person owners 
 as owner, the person so interested shall, as well as the registered owner, be subject 
 to all pecuniary penalties imposed by this or by any other Act on owners of ships or 
 shares therein, so nevertheless that proceedings may be taken for the enforcement 
 of any such pecuniary penalties against both or either of the albrcsaid parties, 
 with or without joining the otiaer of them. 
 
 Forgery. 
 
 101. Any person who forges, assists in forging, or procures to be forged, — 
 
 fraudulently alters, assists in fraudulently altering, or procures to be fraudulently ^['^""l;?!,'"^^"* ^"'^' 
 altered, any register book, certificate of surveyor, certificate of registry, declaration °^^ ^^' 
 of ownership, bill of sale, instrument of mortgage, certificate of mortgage or sale, 
 or any entry or indorsement required by tlie second part of this Act to be made 
 in or on any of the above documents, shall for every such offence be deemed to be 
 "uiltv of felonv. 
 
 National Character. Nationca 
 
 Character. 
 
 102. No officer of customs shall grant a clearance or transire for any ship until ^^*!°Jfp\, ^^ 
 the master of such ship has declared to such officer the name of the nation to ^i^fp^o ^]^g° 
 which he claims that she lielongs, and such officer shall thereupon inscribe such declared before 
 name on the clearance or transire ; and if any ship attempts to proceed to sea clearance, 
 without such clearance or transire, any such officer may detain her until such 
 declaration is made. 
 
 103. The offences hereinafter mentioned shall be punisliable as follows : (that is Penalties, 
 to saj^,) 
 
 (1.) If any person uses the British flag and assumes the British national I'oi" "'ii^i'iy 
 character on board any sliip owned in whole or in part liy any persons a''Biiti."h 
 not entitled b}' law to own British ships, for the purpose of making such character, 
 ship appear to be a British ship, such ship shall be forfeited ((7) to H. M., 
 unless such assumption has been made for the purpose of escaping capture 
 by an enemy or by a foreign ship of war in exercise of some belligerent 
 right ; and in any proceeding for enforcing any such forfeiture, the burden 
 of proving a title to use the British flag and assume the British national 
 cluiracter sliall lie upon the person using and assuming the same : 
 
 (2.) If the master or owner of any British ship does or permits to be done any For conceal- 
 
 matter or tiling, or carries or permits to be carried any papers or docu- or"';^uLpt"ioii'' 
 ments with intent to conceal the Biitish character of such ship from any of foreign 
 person entitled liy British law to inc|uire into the same, or to assume a character, 
 foreign character, or with intent to deceive any such person as lastly 
 hereinbefore mentioned, such ship shall be forfeited to H. M. ; and the 
 master, if he commits or is privy to the commission of the offence, shall 
 be guilty of a misdemeanor : 
 
 (3.) If any unc[ualified person, except in the case of such transmitted interests ]7or acqulrinn' 
 as are hereinbefore mentionecl, accjuires as owner any interest, either legal ownership if" 
 or beneficial, in a ship using a British flag and assuming the British "nqualiflod. 
 chai'acter, such interest shall be forfeited to H. il. : 
 
 (4.) If any jierson, on behalf of himself, or anj^ other person or body of persons, . ,^ 
 
 wilfully makes a false declaration touching the qualification of himself iieciaration of 
 or such other person or body of persons to OAvn British ships or any owucr-^hii). 
 shares therein, the declarant shall be guilty of a misdemeanor ; and the 
 
 (0 See 25 & 26 Vict. c. 03, s. 3. 
 
 ((7) The forfeiture relates to the time of tlie illegal act committed, Tlic Annandale, 47 L. J. Ad,
 
 656 
 
 M. S. ACT, 1854, PART 2, 
 
 Officer not 
 liable for any 
 soizui'e made 
 on reasonable 
 gi'ountls. 
 
 Penalty for 
 oairying 
 niproper 
 colours. 
 
 Effect of 
 ileclaration 
 in the Act 
 that a ship 
 shall not be 
 recognized as 
 a British 
 ship. 
 
 ship or .=;liave in respect of wliicli sucli declaration is made, if the same 
 
 has not been forfeited under the foregoing pro\'ision, shall, to the extent 
 
 of the interest therein of the person making the declaration, and, unless 
 
 it is shown that he had no authority to make the same, of the parties on 
 
 behalf of whom such declaration is made, be forfeited to H. M. 
 
 And in order that the above pro\'isions as to forfeitures (a) may be carried into 
 
 effect, it shall be lawful for any commissioned officer on full pay in the militarj' 
 
 or naval service of H. M., or any British officer of customs, or any British con- 
 
 .sular officer, to seize and detain any ship which has, either wholly or as to any 
 
 sliare therein, become subject to forfeitirre as aforesaid, and to bring her for 
 
 adjudication before the High Court of Admiralty in England or Ireland, or any 
 
 court having Admiralty jurisdicti(jn in H. M.'s dominions ; and such court may 
 
 thereupon make such order in the case as it may think fit, and may award to the 
 
 officer bringing in the same for adjudication such portion of the proceeds of the 
 
 sale of any forfeited ship or share as it may thmk right {h}. 
 
 104. No such officer as aforesaid shall be responsible, either civilly or criminally, 
 to any person whomsoever, in respect of the seizure or detention of any ship that 
 lias been seized or detained by him in pursuance of the provisions herein con- 
 tained, notwithstanding that such ship is not brought in for adjudication, or, if so 
 brought in, is declared not to be lialde to forfeiture, if it is sho-\\m to the satisfac- 
 tion of the judge or court before whom any trial relating to such ship or such 
 seizure or detention is held that there were reasonable grounds for such seizure or 
 detention ; but if no sitch grounds are shown, such judge or court may award pay- 
 ment of costs and damages to any party aggrieved, and make such other order in 
 the premises as it thinks just. 
 
 105. If any colom's usually worn by H. ^M.'s ships, or any colours resembling 
 those of H. M., or any distinctive national colours, excejDt the red ensign usttally 
 worn by merchant ships, or except the union-jack "\rith a white border, or if the 
 pendant usually carried by H. M.'s ships or any pendant in anywise resembling 
 .such pendant, are or is hoisted on board any sliip or boat belonging to any subject 
 of H. M. without warrant for so doing from H. M. or from the Admiralty, the 
 master of such ship or boat, or the owmer thereof if on board the same, and every 
 other person hoisting or joining or assisting in hoisting the same, shall for every 
 sucli offence incur a penalty not exceeding 500/., and it shall be lawful for any 
 officer on full pay in the military or naval service of H. ^1., or any British officer 
 of the customs, or any British consular officer, to board any such ship or boat, and 
 to take away anv such jack, colours, or pendant ; and such jack, colours, or pendant 
 shall be forfeited to H. M. 
 
 106. TMienever it is declared by this Act that a sliip belonging to any person or 
 body corporate qualified according to this Act to be owmers of British ships shall 
 not be recognized as a British ship, .such ship shall not be entitled to any benefits, 
 privileges, advantages, or protection usually enjoyed by British ships, and shall 
 not be entitled to use the British flag or assume tbe British national character ; 
 but, so far as regards the payment of dues, the liability to pains and j)enalties, and 
 the pmiishment of oftences conmiitted on board such ship or by any persons 
 belonging to her, .such .sliip shall be dealt with in the same manner in all respects 
 as if she were a recognized British ship. 
 
 EvidetKf. 
 
 Evidence. 
 
 Copies of 
 registers and 
 declarations 
 
 107. Every register of or declaration made in pursuance of the second jiart of 
 this Act in respect of any British ship may be proved in any court of justice,_or 
 before any person having by law or by consent of parties authority to receive 
 evidence, either by the production of the' original or by an examined cojijy thereof, 
 
 (a) The forfeiture incurred under this section 
 accraes at the time of the illegal and fraudulent 
 act, and a subsequent seizure relates back to the 
 d.itcof the act constituting the cause of forfeiture, 
 and this is so even as against a bond fide piu'- 
 
 chaser without notice of such act. The Arman- 
 dale, iTl.. J. Aa.S. 
 
 (b) As to enforcmg detention of a ship see 
 39 & 40 Yict. c. 80, s. 34.
 
 17 Sc 18 VICT. r. 104. 057 
 
 or by a copy thereof purportmg to be certilied iindev the hand of the registrar or to ho acimi>- 
 
 other person having the cliarge of the original ; whicli certified copies he is hereby ^^l'}f i" 
 
 required to furnish to any person applying at a reasonable time for the same, upon to be prfma'^ 
 
 payment of one shilling for each such certified copy ; and everv such register or fecie proof 
 , , -" - . . ._ . . . .^ „f ..„,..^jjj 
 
 (c). 
 
 copy of a register, and also every certificate of registry of any British ship, pur- thm"^"^ 
 
 porting to be signed by the registrar or other pro]3er officer, shall be received in 
 evidence in anj' court of justice, or before any person having by law or by consent 
 of parties authority to receive evidence, as jorimd facie proof of all the matters con- 
 tained or recited in such register when the register or such copy is produced, and 
 of all the matters contained in or indorsed on such certificate of registry, and jjur- 
 porting to be authenticated hy tlie signature of a registrar, M-hcn such certificate is 
 produced. 
 
 Sarinr/ Glan-if. 
 
 fiaving Clause. 
 
 108. Nothing in this Act contained shall repeal or afl'ect the 3 & 4 Vict, c. 56, |^Z^°f,"^ 
 intituled " An Act further to regulate the Trade of Ships built and ti'ading within c. 56^ reiathi!? 
 tlie Limits of the East India Companv's Charter." to East Indian 
 
 ships. 
 
 PAET III. 
 
 MASTERS AND SEAMEX, 
 
 Appl-icatimi. Application. 
 
 109. The various provisions of the tliird part of this Act shall have the follow- of Part iii. 
 ing applications, unless the context or subject-matter requii'es a different appUca- °^ -^ct. 
 tion ; (that is to say,) 
 
 So much of the third part of this Act as relates to the delivery or transmission Returns for 
 
 of lists of crews to the registrar general of seamen (d) shall apply to all fishing Ko'.'l^'^-^ii'f,^ 
 111. 1 T-r XT- 1 1 1 1 1 • 1 1 i Deionaing to 
 
 vessels belongmg to the L. K., whether employed exclusively on the coasts the United 
 
 of the U. K, or not ; to all ships belonging to the Trinity House, or the Kingdom. 
 
 Commissioners of Northern Lighthouses constituted as hereinafter mentioned, 
 
 or the Port of Dul^lin Corporation (c) ; and to all pleasure yachts, and to the 
 
 oMHiers, masters, and crews of such ships : 
 
 So much of the third part of this Act as relates to the delivery and transmission Returns and 
 of lists of crews, and to the wages and effects of deceased seamen and appren- ^^cease*d 
 tices, shall apply to all sea-going British ships, wherever registered, of which seamen in 
 the crews are discharged, or whose final port of destination is in the U. K., jqIq^^'j^i 
 and to the owners, masters, and crews of such ships : ships.' 
 
 So much of the thiixl part of this Act as relates to the shipping and discharge of Shipping and 
 seamen in the U. K. shall apply to all sea-going British ships, wherever discharging 
 registered, and to the o^vners, masters, and crews of such ships : the u. K. 
 
 So much of the third part of this Act as relates to seamen volunteering into the voiunteerin"- 
 royal navy^ shall apply to all sea-going British ships wherever registered, into the navy, 
 and to the owners, masters, and crews of such ships, wherever the same 
 may be : 
 
 So much of the third part of this Act as relates to rights to wages and remedies Provisions 
 for the recovery thereof ; to the shipping and discharge of seamen in foreign to colonial 
 ports ; to leaving seamen abroad, and to the relief of seamen in distress in ships. 
 
 (r) See 18 & 19 Vict. c. 91, s. 15. (e) Now commissioners of Iri«h lights; see 
 
 (d) Kow registrar-general of shipping and sea- rtate, p. 633, note (c), 
 men ; see 36 & 36 Vict. c. 73, s. 4. 
 
 2 D
 
 G58 
 
 -y\, S. ACT, 1851, TART 3, 
 
 As to whole 
 of Part III. 
 of Act. 
 
 Local 
 Marine Boards 
 
 Constitution of 
 local marine 
 boards. 
 
 Qualification 
 of voters for 
 members of 
 local marine 
 boards. 
 
 foreign ports ; to the provisions, licaltli, ami accommodation of .soamon ; to 
 the power of seamen to make comphahits ; to the protection of seamen from 
 imposition ; to discipline ; to naval courts on the high seas and abroad ; and 
 to crimes committed abroad ; shall apply to all ships registered in any of 
 H. M.'s donnnions abroad, when such ships ai-e out of the jurisdiction of 
 their respective governments, and to the owners, masters, and crews of such 
 ships : 
 And the whole of the 3rd part of this Act shall apply to all sea-going ships {a) 
 registered in the U. K. (except such as are exclusively employed in fishing 
 on the coasts of the U. K., and such as belong to the Trinity House, the Com- 
 missioners of Northern Lighthouses, or the Port of Dublin Corporation (b), and 
 also except pleasm-e yachts), and also to all ships registered in any British 
 possession and employed in trading or going between any place in the U. K. 
 and any place or places not situate in the possession in which such ships ari- 
 registered, and to the owners, masters, ancl crews of such sliips respectively, 
 wherever the same may be. 
 
 Loccd Marine Boards. 
 
 110. There shall be local marine boards for carrying into effect the provisions 
 of this Act under the superintendence of the Board of Trade at those seaports of 
 the U. K. at which local marine boards have heretofore been established, and at 
 such other places as the Board of Trade appoints for this purpose ; and each of 
 such local marine boards shall be constituted as follows ; that is to say, the mayor 
 or provost and the stipendiary magistrate, or such of the mayors or provosts and 
 stipendiary magistrates of the place (if more than one) as the Board of Trade 
 appoints, shall be a member or members ex officio ; the Board of Trade shall 
 appoint 4 members from persons residing or ha\ang places of business at the port 
 or within 7 miles thereof ; and the owners of foreign-going ships and of home- 
 trade passenger ships registered at the port shall elect six members : and such 
 elections as aforesaid shall take place on the 25th day of January, 1857, and on 
 tlie 25th day of January in every third succeeding year, and such appointments as 
 nforesaid shall take place -within one month alter such elections ; and upon the 
 conclusion of such month and the constitution of a new board, the functions of the 
 then existing board shall cease, and the board consisting of the members then 
 newly elected and appointed shall take its place ; and any occasional vacancy 
 caused in the intervals between the general elections and appointments by deatli, 
 resignation, disqualification, or otherwise, shall be filled up within one month 
 after it occurs ; and every person elected or appointed on an occasional vacancy 
 shall continue a member until the next constitution of a new board ; and the 
 mayor or provost shall fix the place and mode of conducting all such elections as 
 aforesaid, and also on occasional vacancies the day of election, and shall give at 
 least ten days' notice thereof ; and the Board of Trade shall have power to decide 
 any cj^uestions raised concerning any such elections, 
 
 111. Owners of foreign-going ships and of home-trade passenger ships regis- 
 tered at any seaport at which there is a local marine board shall have votes at the 
 election of members of such board as follows ; that is to say, every registered 
 owner of not less than 250 tons in the whole of such shipping shall at every 
 election have one vote for each member for every 250 tons owned by him, sn 
 that his votes for any one member do not exceed 10 ; and for the purpose of 
 ascertaining the Cjualification of such electors the following rules shall be 
 observed ; that is to say, in the case of a ship registered in the name of one person, 
 such person shall be deemed to be the owner, and in the case of a ship registered 
 in distinct and several shares in the names of more persons than one, the tonnage 
 shall be apportioned among the owners as nearly as may be in proportion to their 
 respective shares, and each of such persons shall be deemed to be the owner of the 
 tonnage so apportioned to him ; and in the case of a ship or shares of a ship 
 registered jointly without severance of interest in the names of more persons than 
 one, the tonnage shall, if it is sufficient, either alone or together with other ton- 
 nage (if any) owned by such joint-owners to give a cj^ualification to each of them, 
 
 (n) Sec 26 S: 26 Vict, c. 63, ?. IZ.imt. 
 
 (h) Kow commissioners of Irish lights ; see ante. 
 p. C3j, note {c).
 
 1 7 & 18 vir T. c. 104, 059 
 
 be apijortioned equally l)C'tween tlie joint-owuers, and each of such joint-owners 
 shall be deemed to be the owner of the equal share so apportioned to him, but if it 
 is not so suthcient, the whole of such tonnage shall be deemed to be owned by such 
 one of the joint-owners resident or having a place of business at the port or within 
 seven miles thereof as is tirst named on the register; and in making any such appoint- 
 ment as aforesaid any portion may be struck off so as to obtahi a divisible amount : 
 and the whole amount of tonnage so owned by each person, whether in shijjs or 
 shares of or interests in ships, shall be added together, and, if sutticient, shall con- 
 stitute his qualification, 
 
 112. The collectoror comptroller of customs in every seaport of tlieU. K. at which LLst=: of such 
 there is a local marine board shall, with tlie assistance of the registrar-general of '^'Jters to be 
 seamen (c), on or before the 25th day of December in the year 1 8.36, and in every third 
 succeeding year, make out an alpliabetlcal list of the persons entitled by virtue of 
 
 this Act to vote at the election of members of such local marine board, containing 
 the christian name, surname, and residence of each such person, and the nimiber 
 of votes to which he is entitled, and shall sign such list, and cause a sufficient 
 number of copies thereof to be printed, and to be fixed on or near the doors of 
 the custom-house at such seaport for two entire weeks next after such list has lieen 
 made, aiul shall keep true copies of such list, and permit the same to be perused by 
 any person, witliout payment of any fee, at all reasonable hours during such two 
 weeks. 
 
 113. The mayor or provost of every seaport at which there is a local marine Revision of list 
 board, or such of them, if more than one, as is or are for the time being so of voters. ■ 
 appointed as aforesaid, shall at least 20 days before the 25th day of January, in the 
 
 year 1857, and in each succeeding third year, nominate two justices of the peace 
 to revise the said lists ; and such justices shall, between the 8th and 15th days of 
 January both inclusive in the year in which they are so nominated, revise the said 
 list at the custom-house of tlie port, or in some convenient place near thereto, to 
 be hired, if necessary, by the said collector or comptroller, and shall give three 
 clear days' notice of such revision by advertising the same in some local news- 
 ] taper, and by affixing a notice thereof on or near to the doors of such custom- 
 iiouse, and shall make such revision by inserting in such list the name of everj- 
 person who claims to be inserted therein, and gives proof satisfactory to the said 
 revisors of his right to have liis name so inserted, and hj striking out therefrom 
 the name of every person to tlie insertion of which an objection is made by 
 any other person named in such list who gives proof satisfactory to the said 
 revisors that the name of the person so objected to ought not to have been inserted 
 therein ; and the decision of the said revisors with respect to every such claim or 
 objection shall be conclusive ; and the said revisors shall inunediately after such 
 revision sign their names at the foot of the list so revised ; and such list so revised 
 shall be the register of voters at elections of members of the local marine board of 
 such seaport for 3 years, from the 25th day of January then next ensuing inclu- 
 sive to the 24th day of January inclusive in the third succeeding year ; and the 
 said revised list, when so signed, shall be delivered to such mayor or provost as 
 aforesaid of the place, who shall, if necessary, cause a sufficient number of copies 
 thereof to be pruited, and shall cause a copy to be delivered to every voter apply- 
 ing for the same. 
 
 114. The said collector or comptroller, if required, shall for the assistance of the Registers to bo 
 said revisors in re\'ising the said list produce to them the books containing the produced, 
 register of ships registered at such seaport ; and the registrar-general of seamen (c), 
 
 if required, shall also produce or transmit to such revisors such certified extracts 
 or returns from the books in his custody as may be necessary for the same 
 purpose. 
 
 115. The two justices aforesaid shall certify all expenses properly incurred by Expenses to be 
 any such collector or comptroller as aforesaid in making and printing the said list Pf^,,^^ip^°^^'^ 
 and in the revision thereof, and the Board of Trade shall pay the same, and also " 
 all expenses properly incurred by any such mayor or provost as aforesaid in print- 
 ing the same or in elections taking place under this Act ; and the said board may 
 disallow any items of any such expenses as aforesaid which it deems to have been 
 improperly incurred. 
 
 ('■) Xow registrar-general of shipping and seamen, 35 & 36 Viol. c. T3, s. 4, 
 
 2v 2 
 
 of Trade.
 
 660 
 
 M. S. ACT, ]854, I'ART 
 
 ppi'^ons on 
 rovised list 
 (lualifictltovotc. 
 
 Qualification 
 of members of 
 local marine 
 boards. 
 
 Error in elcc- 
 lious not ti) 
 vitiate acts 
 ilone. 
 
 Jliuutcs and 
 business of local 
 marine 
 boards (ro. 
 
 If any local 
 marine board 
 fails to dis- 
 charge its 
 duties. Board 
 < if Trade nia.\' 
 assume its 
 duties, or direct 
 a now fclectiou. 
 
 Board of Trade, 
 <m complaint, 
 may alter 
 arrangements 
 m.ade by local 
 marine boards. 
 
 lie. Evory peKon wliose name appears on such revised list, and no other per- 
 .^on, shall be qualified-to A^ote at the election of members of the local marine board 
 nt such seaport, to be held on the 25th day of January next after the revision of 
 .such list, and at any occasional election held at any time between that day and 
 the next ordinary triennial election of the members of such board. 
 
 117. Every male person ■who is according to such revised list of the voters at any 
 seaport entitled to a vote shall be ([ualified to be elected a member of the local 
 marine board of such seaport, and no other person shall be so qualified ; and if any 
 person elected as a member after such election ceases to be an owner of such quan- 
 tity of tonnage as would entitle him to a vote, he shall no longer continue to act 
 or be considered as a member, and thereupon another member shall be elected in 
 Iris place. 
 
 118. No act of any local marine board shall be vitiated or prejudiced by reason 
 of any irregularity in the election of any of its members, or of any error in the 
 list of voters herein mentioned, or of any irregularity in the making or revising of 
 such list, or by reason of any person who is not clulj' qualified as hereinbefore 
 directed acting upon such board. 
 
 119. Eveiy local marine board .shall keep minutes of its proceedings, and the 
 same shall l)e kept in such mode (if any) as the Board of Trade prescribes ; and 
 such minutes, and all books or documents used or kept by any local marine board, 
 or by any examiners, .shipping masters (b), or other otficers or servants under the 
 control of any local marine board, shall be open to the inspection of the Board 
 of Trade and its officers ; and every local marine board .shall make and send 
 to the Board of Trade such reports and returns as it requires ; but, sifbject as 
 aforesaid, e^-ery local marine board may regulate the mode in which its meet- 
 ings are to be held and its business conducted. 
 
 120. If any local marine board, l)y I'eason of any election not taking place, 
 or of the simultaneous resignation or continued non-attendance of all or the 
 greater part of tlie members, or from any other cause, fails to meet or to dis- 
 charge its duties, the Board of Trade may in its discretion either take into its 
 own hands the performance of the duties of such local marine board until the 
 next triennial appointment and election thereof, or direct that a new appoint- 
 ment and election of such local marine board shall take place immediately. 
 
 121. If upon complaint made to the Board of Trade it appears to such board 
 that any appointments or arrangements made by any local marine board under 
 the powers hereby given to it are not such as to meet the wants of the port, or are 
 in any respect unsatisfactory or improper, the Board of Trade may annul, alter, or 
 rectify such appointments or arrangements in such manner as, having regard to 
 the iirtentions of this Act and to the wants of the port, it deems to be expedient. 
 
 Shipping Offices. 
 
 Local marine 
 boards to 
 establish mer- 
 cantile marine 
 offices. 
 
 Board of Trade 
 to have partial 
 control over 
 8uc;i offices. 
 
 Shipping Offices (h). 
 
 122. In every seaport in the U. K. in wliich there is a local marine boai'd, such 
 board shall establish a shipping oifice or shipping offices (b), and may for that pur- 
 ]iose, subject as herein mentioned, procure the recpiisite premises, and appoint and 
 from time to time remove and re-appoint superintendents of such offices, to be called 
 shipping masters (6) with any necessary deputies (b), clerks, and servants, and 
 regulate the mode of conducting business at such offices, and shall, subject as here- 
 in mentioned, have complete control over the same ; and every act done by 
 or before any deputy duly appointed shall have the same effect as if done by 
 or before a .shipping master (b). 
 
 123. The sanction of the Board of Trade shall be necessary so far as regards the 
 numlier of persons so appointed by any such local marine board, and the amount 
 of their salaries and wages and all other expenses ; and the Board of Trade shall 
 
 (a) See R. v. CoUinciridr/f. 34 L. J. Q. B. 9. See 
 2.5 & 26 Viet. c. 63, s. 14, as to local marine board.s 
 determining a quorum. 
 
 (h) The offices termed shipping offices are now- 
 termed mercantile manne offices, and the officer.s 
 termed shijiping masters, aud deputy shipping 
 
 maste)'s are now termed superintendents and 
 deputy superintendents of such offices. 25 & 26 
 Vict. c. 63, .s. 15. See 36 & 37 Vict. c. 85, s. 10, 
 post, as to the establishment of mercantile 
 marine offices in certain cases.
 
 17 & 18 VICT. 0. 104. 661 
 
 liave llie iiumediale coiiLrul of such shipping' offices (c), so lar as regard the receipt 
 and payment of money thereat ; and all shipping masters (c), deputies, clerks, and 
 servants so appointed as aforesaid shall before entering upon their duties give 
 sucb securhy (if any) for the due performance thereof as the Board of Trade 
 requires ; and if in any case the Board of Trade has reason to believe that 
 any shipping master (c), deputy, clerk, or servant appointed liy any local marine 
 board does not properly discbarge his duties, the Board of Trade may cause the 
 case to be investigated, and may, if it thinks tit so to do, remove him from his 
 office, and may provide for the proper performance of his duties until another 
 person is properly ajipointed in his place. 
 
 124. It shall be the general business of shipping masters (c) appointed as Business of 
 ■1 foresaid •— such offices 
 iiiuLcsam . . 1 • generally. 
 
 To afford facilities for engaging seamen by keeping registries oi their names 
 
 and characters : 
 To superintend and lacilitatc their engagement and discharge in manner 
 
 hereinafter mentioned : 
 To provide means for securing the presence on board at the proper times of men 
 
 who are so engaged : 
 To facilitate the making of apprenticeships to the sea service : 
 To perform such other duties relating to merchant seamen and merchant 
 
 ships as are hereby or may hereafter under the powers herein contained be 
 
 committed to them. 
 
 125. Such fees, not exceeding the sums specihed in the table marked P. hi the Jj^^^^e'iigasr-"^ 
 schedule hereto, as are from time to time fixed by the Board of Trade, shall be jnents aud 
 payable upon all engagements and discharges effected before shipping inasters (c) discliargcs. 
 
 as hereinafter mentioned, aud the Board of Trade shall cause scales of the fees 
 payable for the time being to be prepared and to be conspicuously placed in the 
 sliipping offices (c) ; and all shipping masters (c), their deputies, clerks, and ser- 
 vants, may refuse to proceed with any engagement or discharge unless the fees 
 payable thereon are fiist paid. 
 
 12(5. Every owner or master of a ship engaging or discharging any seamen or Master to pay 
 seaman in a shipping office (c), or liefore a shipping master (c), shall pay to the ^f^f^ct^^a^^ 
 shipping master (c) the Avholc of the fees hereby made payable m respect of such from wages, 
 engagement or discharge, and may, for the purpose of in part reimbursing himself, 
 deduct in respect of each such engagement or discharge from the wages of all 
 persons (except apprentices) so engaged or discharged, and retain any sums not 
 exceeding the sums specified in that behalf in the table marked Q. in the schedule 1^°^^^° '^^ "^^ 
 hereto : Provided that, if in any cases the sums which the owner is so entitled to 
 deduct exceed the amount of the fee payable by him, such excess shall be paid Ijy 
 him to the shipping master (c) in addition to such fee. 
 
 127. Any shipping master (c), deputy shipping master (c), or any clerk or servant Penalty on 
 in any shipping office (c), who demands or receives any remuneration whatever, J.|!^\°°(,°4'iiou. 
 either directly or indirectly, for hiring or supplying any seaman for any merchant ^ 
 
 ship, except the lawful fees payable under this Act, shall, for every such offence,' 
 incur a penalty not exceeding'20/., and shall also be liable to Ije dismissed from 
 his office liy the Board of Trade. 
 
 128. The Board of Trade may, with the consent of the commissioners of Business of 
 customs, direct that at any place in which no separate f>hipping office (c) is esta- JJ,'!jl.i,ie offlces 
 blished, the whole or any part of the business of the shipping office shall be con- may be trans- 
 ducted at the custom-house, and thereupon the same shall be there conducted j'^^tecut custom- 
 accordingly ; and in respect of such business such custom-house shall for all 
 
 purposes be deemed to be a shipping office (c), and the officer of customs there, to 
 whom such business is committed, sluxU for all purposes be deemed to be a ship- 
 ping master (c) within the meaning of this Act. 
 
 129. The Board of Trade may appoint any superintendent of or other person in London 
 connected with any sailors' home in the port of London to be a shipping ^{^Jl^^j^^ gi|j",f* 
 
 offices. 
 
 (c) The otflees termed shipi)ing offices arc now masters arc now termed superintendents and 
 termed mercantile marine otfices^ and the officers deputy siiperinteinlcnts of such offices ; io i 2« 
 termed sliipping master* and deputy shipping Vict. c. 03, s^, 10 ; sec 30 & 37 Vict, c. 85, s. 10.iW6-(.
 
 G62 
 
 M. S, ACT, l8-jJ-, i>AKT o, 
 
 Dispcnsaliou 
 Avith supc:-iQ- 
 lendcncc. 
 
 uiasLcr (a), uilh any uecetisaiy deputies, eleiks, and servants, and may appoint 
 any oflice in any such home to he a shipping ottiee (a), and all shipping masters 
 and shipjnng offices (o) so appointed shall be subject to the immediate control oi" 
 the Board ol" Trade, and not of the local marine board of the port. 
 
 130. The Board of Trade may from time to time dispense with the transaction 
 before a shipping master (a) or in a shipping office («) of any matters required by this 
 Act to be so transacted ; and thereupon such matters shall, if otherwise duly 
 transacted as required by law, be as valid as if transacted before a shipping 
 master (a), or in a shipping office (a). 
 
 Cfi-tificolcs of 
 
 Maxtrfs and 
 
 JIates. 
 
 Examinations to 
 be instituted for 
 masters and 
 mates (&). 
 
 Powers of Board 
 of Trade over 
 examinations. 
 
 Fees to be paid 
 by applicants for 
 examination. 
 
 Certificates of 
 competency to 
 be granted to 
 those who puss. 
 
 C'ertiticates of 
 service to be 
 delivered to 
 persons who 
 
 KcaminatioH and Certificates of Masters and Mates. 
 
 131. Examinations shall l)e instituted for persons who intend to become 
 masters or mates of foreign-going ships, or of home-trade passenger ships, or who 
 Avish to prociu'c certificates of competency hereinafter mentioned ; and subject as 
 herein mentioned, the local marine boards shall provide for the examinations at 
 their respective ports, and may appoint and from time to time remove and re- 
 appoint examiners to conduct the same, and may. regulate the same : and any 
 membeis of the local marine board of the place where the examination is held may 
 be present and assist at any such examination. 
 
 132. The Board of Trade may from time to time lay down rales as to the 
 conduct of such examinations and as to the f|ualitications of the applicants, and 
 such rules shall be strictly adhered to by all examiners ; and no examiner shall 
 be appointed unless he possesses a certificate of cj[ualitication, to be from time to 
 time granted or renewed by the Board of Trade ; and the sanctioir of the Board oi 
 Trade sliall be necessary, so far as regards the number of examiners to be 
 appointed, and the amount of their remuneration ; and the Boar<l of Trade may 
 at any time depttte any of its officers to be present and assist at any examinatiun : 
 and if it appears to the Board of Tra(h' that the examinations for any two or mori' 
 ports can Ije conducted Avithout inconvenience liy the same examiners, it may 
 require and authorise the local marine boards of such ports to act together as one 
 board in providing for and regxtlating examinations antl appointing and removing 
 examiners for such ports. 
 
 133. All applicants for examination shall pay such fees, not exceeding the sums 
 specitied in the table marked E. in the schedule hereto, as tlie Board of Trade 
 directs ; and strch fees shall be paid to sirch persons as the said board appoints for 
 that ])urpose. [See 25 & 26 Vict. c. 63, ss. 7 and 8, 2^ost.] 
 
 134. Subject to the proviso hereinafter contained, the Board of Trade shall 
 deliver to every applicant Avho is duly reported by the local examiners to have 
 passed the examination satisfactorily, and to have given satisfactory evidence of 
 his sobriety, experience, ability, and general good conduct on board sliip, a certifi- 
 cate (liereinafter called a '"certificate of competency'") to the effect that he is com- 
 petent to act as master, or as first, second, or only mate of a foreign-going ship, or 
 as master or mate of a home-trade passenger ship, a.■^ the case may be : Provided 
 that in every case in which tlie Board of Trade lias reason to believe such report 
 to have been unduly made, sucli board may remit the case either to the same or 
 to any other examiiK'rs, and may require a re-examination of the apjilicant, or a 
 further inquiiy into his testimonials and character, before granting him a 
 certificate. 
 
 13'). Cerlihcates of sei-vice differing in form from certificates of com])elency, 
 shall be granted as follows (that is to .-^ay) : 
 
 (1.) Every person Avho before the 1st day of January, 1851, served as master in 
 
 I 
 
 I 
 
 ('0 'i'lic ofiiccs termed >liipping offices arc now 
 termed mercantile marine olflces, and tlie otticcrs 
 termed shipping masters and dcjnUy sliippiug 
 iiiastcvs are now tenncd suporiutondents .-nid 
 dcputv KUperintcudcuts of such olUces ; -D it -(i 
 Vitt. c. 63, s. 15. 
 
 ('■>) As to cxainiiiatlon <>f ttlastcrs and uinic^ 
 \\ here there arc no local marine boards, sec 25 ^ 
 •Jii A'icl. c. 03, s. 17; and see ts. 5 to 10 of same 
 slat, as to engineers' certificates. As to colonial 
 certificates to masters, &c., sec 32 & 33 A'ici. ell*
 
 17 & 18 viGT. c. 104. 663 
 
 the Brilisli mcrdiaiit service, or -who lias attained or attains the rank of served as 
 lieutenant, master, passed mate, or second master, or any higher rank in ™!}tg3''^efrJro 
 the sendee of H. M. or of the East India Company, shall he entitled to a is'si, and to'' 
 certificate of service as master for foreign-going ships : certain naval 
 
 (2.) Every person who before the 1st day of January, 1851, served as mate in cw-tfficatcTof 
 the British merchant service shall be entitled to a certificate of service as servico for 
 naate for foreigrr-goiiig sliips : Se^nS's^bips 
 
 (•3.) Every person who beiore the 1st day of January, 18o4, has served as to be delivered 
 
 master of a home-trade passenger ship shall be entitled to a certificate of to persons wbo 
 ,. 1 ^ ^ ? ^ -I ■ have served as 
 
 service as master lor home-trade passenger ships : masters or 
 
 (4.) Every person who before the 1st day of January, 1854, has served as mate mates in sucli 
 of a home-trade passenger ship shall be entitled to a certificate of service jauviary Tsoi!^*' 
 as mate for home-trade passenger ships : 
 And each of such certificates of service shall contain particulars of the name, place, 
 and time of birth, and of the length and nature of the previous service of the 
 person to whom the same is delivered ; and the Board of Trade shall deliver such 
 certificates of service to the various persons so respectively entitled thereto, upon 
 their proving themselves to have attained such rank, or to have served as af ore- 
 stud, and upon their giving a full and satisfactory account of the particulars 
 aforesaid. 
 
 136'. No foreign-going ship or home-trade passenger ship shall go to sea from Ko f orei^u- 
 any ])ort in the U. K. unless the master thereof, and in the case of a foreign-going goine ^^^°^' 
 ship the first and second mates or only mate (as the case may be), and in the case passeiigeV ship 
 of a home-trade passenger ship the first or only mate (as the case mtiy be), have to proceed to 
 obtained and possess valid certificates either of competency or service appropriate ecrtTticateoi 
 to theii- several stations in such ship, or of a higher grade ; and no such ship, if of the master and 
 1 (10 tons burden or upM-ards, shall go to sea as aforesaid, nnless at least one officer myites. 
 besides the master has obtained and possesses a valid certificate appropriate to the 
 grade of only mate therein or to a higher grade ; and every person who, having 
 been engaged to serve as master or as first or second or only mate of any foreign- 
 going ship, or as master or first or only mate of a home-trade passenger ship, goes 
 to sea as aforesaid as such master or mate without being at the time entitled to 
 iuid possessed of such certificate as hereinbefore required, or who eiiq^loys any 
 person as master, or first, second, or only mate of any foreign-going ship, or as 
 master, or first or only mate of a home-trade passenger ship, without ascenaining 
 that he is at the time entitled to and possessed of such certificate, shall for each 
 such oft'encc incur a penalty not exceeding 50^. 
 
 137. Every certificate of competency for a foreign-going ship shall lie deemed to Certificates for 
 be of a higher grade than the corresr/onding certificate for a home-trade passenger ^{^y!;'"":?,^''],^,, 
 ship, and shall entitle the lawful holder thereol to go to sea m the corresponding for homc-trado 
 grade in such last-mentioned ship ; but no certificate for a home-trade passenger pasbCDger shix)6. 
 ship shall entitle the holder to go to sea as master or mate of a foreign-going 
 
 ship. 
 
 138. All certificates, whether of competency or service, shall be made in dupli- Tlie registrar to 
 cate, and one part shall be delivered to the person entitled to the certificate, and cancliiatkins,'' 
 the other shall Ije ke]rt and recorded by the registrar-general of seamen (c), or by sucli &c. of certiti- 
 other person as the Board of Trade appoints for that purpose ; and the Board of '^'^*'^"* (f^^- 
 Trade shall give to such registrar or such other person immediate notice of tdl 
 
 orders made by it for cancelling, suspending, altering, or otherwise affecting any 
 
 certificate in pursuance of the powers herein contained ; and the registrar or such 
 
 otlier person as aforesaid shall thereupon make a corresponding entry in the 
 
 record of certificates ; and a copy purporting to be certified by such registrar or ^It'rle^^obe"^^ 
 
 his assistant or by such person as aforesaid of any certificate shall be i)rimA facie evidence. 
 
 evidence of such certificate, and a copy purporting to be so certified as aforesaid of 
 
 any entry made as aforesaid in respect of any certificate shall be privid facie 
 
 evidence of the truth of the matters stated in such entry. 
 
 139. Whenever any master or mate (rf) proves to the satisfaction of the Board of m case of loss 
 Tnxde that he has, without fault on his part, lost or been deprived of any certificate ^ P"!'^ 1° ^^ 
 already granted to him, the Board of Trade shall, upon payment of such fee (if ^ 
 
 ((•) Now vcgistrai'-general of sliipi'iug ami (<') As to this section applying 
 
 seamen ; see 35 & 80 Vict> c. 73, s, 4, certificates, sec 25 & 20 Vict. c. 63; 
 
 to cuffiuccr.-!' 
 . 1(1,
 
 664 
 
 .M. S. ACT, J 854, PART 3, 
 
 Penalties for 
 false representa 
 lions. 
 
 F'T forging or 
 altering or 
 fraudulently 
 using or lendin; 
 any ccrtilicate. 
 
 ;iny) as> it directs, cuii.se a coj)y of tlic certilicale to Avliiuli Ijy tlit; record so kc^jt as 
 aforesaid he appears to be entitled to be made out and certiiied as aforesaid, and to 
 be delivered to hhii ; and any copy "wiiich. piu'ports to be so made and ceilified as 
 aforesaid shall have all the eifect of the original. 
 
 140. Every person who makes, or procures to be made, or assists in making, any 
 false representation for the purpose of obtaining for liimself or for any other person 
 a cei'titicate either of competency or service, or who forges, assists in forging, or 
 procures to be forged, or fraudulently alters, assists in fraudulently altering, or 
 procures to be fraudulently altered, any such certificate or any official copy of any 
 . such certificate, or who fraudulently makes use of any such certificate, or any copy 
 ' of any such certificate which is forged, altered, cancelled, suspended, or to -which 
 he is not justly entitled, or avIio fraudulently lends his certificate to or allows the 
 same to be used by any other person, shall for each oflence be deemed guilty of a 
 misdemeanor. 
 
 Apprenti ces h ijys 
 to Sea Service. 
 
 Superintendents 
 of mercantile 
 marine offices to 
 assist in 
 
 binding appren- 
 tices, and may 
 receive fees. 
 
 Indentures of 
 boys bound 
 apprentices to 
 sea service by 
 guardians or 
 overseers to be 
 witnessed by 
 two justices. 
 
 Indentures of 
 apprenticeship 
 to be exempt 
 from stamp 
 duty, and to 
 be recorded. 
 
 Kulcs to govern 
 apprenticeship 
 of paupers in 
 Great Britain 
 and Ireland 
 respectively. 
 
 Apprenticfsliips to the Sea Service (a). 
 
 141. All shipping masters (h) ajjpointed under this Act shall, if apjilied to for 
 the ]3urpose, give to any board of guardians, overseers, or other persons desirous of 
 aj^prenticing boys to the sea service, and to masters and owners of ships rec|uii"ing 
 apprentices, siich assistance as is in their power for facilitating the making of such 
 apprenticeships, and may receive from persons availing themselves of such assist- 
 ance such fees as may be determined in that behalf by the Board of Trade, ■with 
 the concurrence, so far as relates to pauper aj^prentices in England, of the Poor 
 Law Board in England, and so far as relates to pauper apprentices in Ireland, of 
 the Poor Law Commissioners in Ireland. 
 
 142. In the case of every boy boiind apprentice to the sea service by any 
 guardians or overseers of the poor, or other persons having the autliority of guar- 
 dians of the poor, the indentures shall be executed by the boy and the person to 
 whom he is bound in the presence ot, and shall be attested by two justices of the 
 peace, who shall ascertain that the boy has consented to be boimd, and has 
 attained the age of twelve years, and is of sufficient health and strength, and 
 that the master to whom the boy is to be bound is a proper person for the 
 purpose. 
 
 143. All indentures of apprenticeship to the sea service shall be exempt fi'om 
 stamp duty ; and all such indentm-es shall be in duplicate ; and every person to 
 whom any boy whatever is bound as an apprentice to tlie sea service in the L". K. 
 ^hall within seven days after the execution of the indentures take or transmit the 
 saine to the registrar-general of seamen (c), or to some shipping master (h) ; and the 
 said registrar or shipping master (b) shall retain and record one copy, and shall 
 endorse on the other that the same has been recorded, and shall re-deliver the | 
 same to the master of the apprentice ; and whenever any such indenture is I 
 assigned or cancelled, and whenever any such apprentice dies or deserts, the 
 master of the apprentice shall, within 7 days after such assignment, cancellation, 
 death or desertion, if the same happens Avitliin the U. K., or if the .same happens] 
 elsewhere, so soon afterwards as cii-cumstances permit, notify the same either to j 
 the said registrar of seamen, or to some shipping master (b), to be recorded ; ;md I 
 every person who fails to comply with the provisions of this section shall incur a j 
 jienalty not exceeding ^10. 
 
 144. Subject to the pro^-isions hereinbefore contained, all apprenticeships to thel 
 .'rea service made by any guardians or overseers of the poor, or persons havmg thel 
 authurity of the guartbans of the poor, shall, if made in Great Britain, be made inj 
 the same manner and be subject to the same laws and regulations as other appren-| 
 ticesliips made by the same jjersons, and if made in Ireland shall be subject to the] 
 following rules ; (that is to say,) 
 
 (1.) In every union the guai'dians of the poor or other 2:iersons duly appointed] 
 to carry into execution the Acts for the relief of the destitute poor, and] 
 
 («) As to implied contract to use means to in- 
 sure seiiworthiness of ship, see 39 & 40 Vict. c. 80, 
 B. 6, poi<L 
 
 {h) ifow supcrlutcudcnt; of mercantile marine 
 
 offices; 25 i; 26 Vict. c. C3, s. 15 ; ante, p. 662,J 
 notc(«). 
 
 (c) Xow registrar-general of shipping and 
 seamen ; see ad & 36 Viel. c. 73, 5. i.
 
 17 & IS VICT. c. 101'. 6G5 
 
 Jiuviiig the authority of guardiauri of the jioor, may put out aud bind as 
 an apprentice to tlie sea service any boy who or Avhose parent or parents 
 is or are receiving relief in such union, and who has attained the age of 
 12 years, and is of sufficient health and strength, and who consents to be 
 so bound : 
 
 (2.) If tlie cost of relieving any such boy is chargeable to an electoral division 
 of a union, then (except in cases in which paid officers act in place of 
 guardians) he shall not be bound as aforesaid unless the consent in 
 writing of the guardians of such electoral division or of a majority of the 
 guardians (if more than one) be first obtained, such consent to be, Avhen 
 possible, indorsed upon the indentures : 
 
 (3.) Tlie expense inciu-red in the binding and outht of any such apprentice 
 shall be charged to the union or electoral division (as the case nuiy be) to 
 which the boy or his parent or parents is or are chargeable at the time 
 of his being apprenticed : 
 
 (4.) All indentures made in any union may be sued upon Ijy the giuirdians of 
 the union, or persons having the authority of guardians therein for the 
 time being, by their name of office, and actions brought by them upon 
 such indentures shall not abate by reason of death or change in the 
 persons holding the office ; but no such action shall be commenced vntli- 
 oi;t the consent of the Irish Poor Law Commissioners : 
 
 (5.) The amount of the costs inciuTed in any such action and not recovered 
 from the defendant therein, may be charged upon the luiion or electoral 
 division (as the case may be) to which the boy or his parent or parents 
 Avas or were chargeable at the time of his being apprenticed. 
 
 145. The master of every foreign going ship shall before carrying any appren- Apprentices aiul 
 tice to sea from any place in the U. K., cause such apprentice to ap2:)ear before ^'^*ji'" indentures 
 the shipjiing master (d) ]>efoie whom the crew is engaged, and shall produce to him before a super- 
 tlie indentiu'c by which such apprentice is bound, and the assignment or assign- intondent of ;i 
 meuts thereof (if any) ; and the name of such apprentice, with the date of the marine oHk-c 
 indenture aud of the assignment or assignments tliereof (if anyj, and the name before each 
 
 of the port or ports at which the same have been registered, shall be entered on yoy<!Sc in a ^ 
 the agreement ; and for any default in obeying the provisions of this section the s'bip.^ '^ "° 
 master shall for each offence incur a penalty not exceeding ol, 
 
 Enrjagement of Seamen. Enaarjementof 
 
 •^ '' •' Seamen. 
 
 146. The Board of Trade may grant to such persons a? it thinks tit licences Boani of Trade 
 to engage or supply seamen or apprentices for mercliant ships (c) in the U. K., to J^r^ons™^" ■ 
 continue for such ]jeriods, to be upon such terms, and to be reA'okable ripon such cure seamen."' 
 conditions, as such board thinks proper (/). 
 
 147. The follo-\ving offences shall be punishable as herein-after mentioned ; pcnaitic- : 
 (that is to saj',) 
 
 (1.) If any person not licensed as aforesaid, other than the owner or master, or p,,j. -^uppiyjn,. 
 a mate of the ship, or some person who is bond Jidc the servant antl in scamcu wftlioitt 
 the constant employ of the owner, or a shipping master (d) duly appointed ii^^ensc ; 
 as aforesaid, engages or supplies any seaman or apprentice to be entered 
 on board any ship in the U. K., he shall for each seaman or apprentice 
 so engaged or supplied incur a penalty not exceeding 201. 
 
 (2.) if any person employs any unlicensed ]jerson, other than persons so For employing 
 excepted as aforesaid, for the purpose of engaging or supplying any imiicensed 
 seaman or apprentice to be entered on board any "ship in the U. K., l'""^'^^^^ 
 he shtdl for each seaman or apprentice so engaged or su^iplied incur a 
 penalty not exceeding 20^., and if licensed shall in addition forfeit his ' 
 licence : 
 
 (3.) If any person knowingly receives or accejits to be entered on board any For receiving 
 sliiiJ any seaman or airorentice who has been encased or supplied con- seamen illegally 
 . t II supplied. 
 
 (d) Now a superintendent of a mercantile marine (/) Sec now as to Medical Inspection of Seamen 
 
 ottice ; see ante, p. 662, note. sect. 10 ; 30 & 31 Vict. c. 124. 2wst. 
 
 (c) To wh.1t ships tlii^ part of ihc Act applies, 
 sees. 10»,oii«f, p. 658.
 
 G6G 
 
 M. S. ACT, 1854, I'AET. o. 
 
 .I'cnalty foi- 
 receiving romu- 
 iiei-ation fruui 
 t^camen for 
 shipping them. 
 
 Agreements to 
 be made witli 
 seamen, con. 
 tjiining certain 
 particulars (a). 
 
 Troviso as to 
 forms for 
 euloninl sliipsi. 
 
 I'or foreign- 
 going i^hips sucli 
 agreements, 
 wlion made in 
 the I', K., 
 except ill special 
 cases, to be 
 made before 
 and attested by 
 a superintendent 
 of a mercantile 
 marine office. 
 
 To be ill 
 duplicate ; 
 
 Provision for 
 fcubstitutcs. 
 
 traiy lo the provisions ol' this Act, he shall Ibr ovciy scaiimii or appreu- 
 ticc so engaged or supplied incur a jienalty not exceeding 20^. 
 
 148. If any person demands or receives, either directly or indirectly, from any 
 seaman or apprentice, or from any jjerson seeking employment as a seaman 
 or itpprentice, or from any person on his behalf, any remuneration whatever, 
 other thtin the fees hereby authorized, for providing liim ■with employmefit, he 
 shall for every such offence incur a penalty not exceeding 5^. 
 
 149. The master of every ship, except ships of less than eighty tons registereil 
 tonnage exclusively employed in trading between different ports on the coasts of 
 the U. K., shall enter into an agreement mth every seaman whom he carries to 
 sea from any port in the U. K. as one of his crew in the manner herein-after 
 mentioned ; antl every such agreement shall be in a form sanctioned by the 
 Boartl of Trade, and shall be dated at the time of the first signature thereof, and 
 shtdl lie signed Ijy the master before any seaman signs the same, txnd shtxll contain 
 the following particulars as terms thereof ; (that is to say,) 
 
 (1.) The nature, tind, as far as practicable, the duration of the intended voyage 
 
 or engagement : 
 (2.) The number and description of the crew, specifying how many arc engaged 
 
 as sailors : 
 (3.) The time ;it which each seaman is to be on board or to begin Avorh : 
 (4.) The capacity in Avhich each seauitm is to serve : 
 (5.) The amount of wages which each seaman is to receive : 
 ((i.) A scale of the provisions which are to be furnished to each seaman : 
 (7.) Any regulations as to conduct on Ijoard, and as to lines, short tillowauce of 
 provisions, or other hiwful ])unishments for misconduct, which have been 
 sanctioned l:y the Board of Trade as regulations jiroper to be adopted, 
 and Avhich the parties agree to tidopt : 
 And every such agreement shall be so framed as to itdmit of stipuhitions, to be 
 adopted at the will of the master and seaman in each case, as to tidvance and 
 allotment of Avages, tind may conlaiu tuiy other stipulations which tire not contrary 
 to liiw : Provided that if the master of any ship belonging to any Britisli posses- 
 sion lias an agreement with his crew made in due form according to the law of 
 tlie possession to which such ship belongs, or in wliich her crew were engaged, 
 and engages single setimen in the U. K., such seamen may sign the agreement so 
 jiiiide, and it shall not be necessary for them to sign an agreement in the form 
 sanctioned by the Board of Trade. 
 
 150. In the case of all foreign-going ships, in whtitevcr part of H. M.'s dominions 
 the stime are registered, the following rules shall be oliserved with respect to 
 agreements ; (that is to say,) 
 
 (1.) Every agreement made in the U. K. (except in such cases of agreements 
 -with substitutes as are herein-after specially provided for) shall be signed 
 by each seaman in the presence of a shipping master: (b) 
 
 (■1.) Sucii shi]iping master (b) shall cause the agreement to be read over and 
 rx])lained to each seaman, or otherwise ascertain that etich seaman 
 luiderstands the same Ijefore he signs it, and shall attest such signa- 
 ture : 
 
 (o.) When the crew is first engaged, the agreement shall be signed in duplicate, 
 trnd one ]>art shall be retttined by the shij^ping master (6), and the othei' 
 ])art shtill contain a special place or form for the descriptions and signa- 
 tures of sul)stitutes or jiersons engaged sttbsequently to the first departiu'c 
 of the ship, ;ind sluill be delivered to the master : 
 
 (4.) in the case of substitutes engaged in the place of seamen Avho have duly signei I 
 the agreement, and whose services are lost Avithin t\\enty-fotrr hours of 
 the ship's putting to sea by death, desertion, or other tmforseen cause, the 
 engagement shall, when practicable, be made before some shipping 
 master (/>) <luly appointed in the manner herein-before specified ; and 
 Avhenever such last-mentioned engagement cannot be so made, the master 
 ,:hall, before the ship puts to sea, if practicable, and if not, as soon after- 
 
 Co) Sci^ 3G & 37 Vict, c, 80, ss. 7 and 8, post ; as to 
 implied obligaiiouis of owner, sec 39 & 40 Vict. 
 C. St», s. 5, J'os/. 
 
 {b) Kow a supcrinfcndcnt of a mercantile 
 murine oUicc ; 25 & 20 Vict. c. 63, i-. !•'>.
 
 17 & 18 VICT. c. 104. 667 
 
 >vai'ds as po.ssible, cause the agreement to be read over and explained to the 
 seaiucji ; and the seamen sliall thereupon sign the same in the presence 
 of a witness, who sliall attest their signatures. 
 
 151. In the case of foreign going ships m'aking voyages averaging less than six Forciffu-goa^g 
 months in duration, running agreements with the creAV may be made to extend siiort voyages 
 t)ver two or more voyages, so that no such agreement shall extend beyond the may have 
 next following 30th day of June, or 31st day of December, or the first arrival of ™^J^"^"|S tigi-ec- 
 the ship at her port of destination in the U. K. after such date, or the discharge 
 
 of cargo consequent upon such arrival ; and every j^erson enteiing iirto such 
 agreement, wdiether engaged upon the fii'st commencement thereof or otherwise, 
 shall enter into and sign the same in the manner herel.iy a'crpiired for other foreign- 
 going ships ; and every person engaged thereunder, if dischai'ged in the United 
 Kingdom shall be discharged in the manner hereby rec^iiired for the discharge of 
 seamen belonging to other foreign-going shij:)s. 
 
 152. The master of every foreign-going ship for wliich such a running agree- Eugu.trcuicni 
 ment as aforesaid is made shall, upon every leturn to any port in the U. K. before f^^'J disciiargo 
 the final termination of the agreement, discharge or engage before the shipping tiie^'meaatimc. 
 master (c) at such port any seaman whom he is recpiired liy laAv so to discharge or 
 
 engage, and shall upon every such return indorse on the agreement a statement 
 (as the case may be) either that no such discharges or engagements have been 
 made or are intended to be made before the ship again leaves port, or that all 
 such discharges or engagements have lieen duly made as herein-before required, 
 and shall deliver the agreement so indorsed to the shipping master (c) ; and any 
 master who wilfully makes a false statement in such indorsement shall incur a 
 l)enalty not exceeding 20/. ; and the shipping master (c) shall also sign an endorse- 
 ment on the agreement to the efiect that the provisions of this Act relatmg to 
 such agreement have been comjdied with, and shall re-deliver the agreement so 
 indorsed to the master. 
 
 153. In cases in which such running agreements are made, the duplicate agree- Duplicates of 
 ment retained by the shipping master (c) upon the first engagement of the crew J]i'°Jt"'ho\vT)" 
 shall either be transmitted to the registrar-general of seamen (rf) immediately, or be be dca'it \vitii. 
 kept by the shipping master (c) imtil the expiration of the agreement, as the Board 
 
 of Trade directs. 
 
 154. For the purpose of determining the fees to lie paid upon the engagement Fees to be paid 
 and discharge of seamen belonging to foreign-going ships which have running "JJ*^"ch runniug 
 agi'eements as aforesaitl, the crew shall be considered to be engaged when the '''Siceuien -. 
 agreement is first signed, and to Ije discharged when the agreement finally terminates, 
 
 and all intermediate engagements and discharges shall be considered to be engage- 
 ments and discharges of single seamen, 
 
 155. In the case of home-trade ships, crews or single seamen may, if the master In jiomc-trado 
 thinks fit, be engaged before a shippinj' master (c) in the manner herein-before to'ije ent^™!'^"'' 
 dii'ectcd with respect to foreign-going ships ; and in eveiy case in Avhicli the into before a 
 engagement i'^ not so made, the master shall, before the ship puts to sea, if prac- i"i|pei'intendcnf 
 ticable, and if not, as soon afterwards as possible, cause the agreement to be read inuriwMjffico'''^ 
 over and explained to each seaman, and the seaman shall thereupon sign the same or miiyr wii- 
 in the ]iresence of a witness, who shall attest his signature. '"■'**• 
 
 156. In cases where several home-trade ships belong to the same owner, the •'■^pt'cial agi-ce- 
 agreement with the seameir may, notAvithstanding anytliing herein contained, lie ti"io''shf,,^"^'^" 
 ]nadc by the owner instead of by the master, and the seamen may be engaged to belonging lo 
 serve in any two or more of such ships, provided that the names oi' the ships and ^''"^^ owiieij. 
 the nature of the service are specified in the agreeinent ; but Avith the foregoing 
 
 exception all provisions herein containetl Avhich relate to ordinary agreements for 
 home-trade ships shall be applicable to agreements made in pursuance of this 
 section. 
 
 157. If in any case a master carries any seaman to sea Avithout entering into an roualtvtbr 
 agreement Avith him in the form and inanner and at the place and time hereliy in shipping .scameu 
 such case ie(|uired, the master in. the case of a foreign-going ship, and the master '*^itli''"t j'^ree- 
 or OAvner in the case of a home-trade ^liip, shall for each such ufience incur ;i penalty cvccuted, 
 
 not exceeding 5/. 
 
 (r) Kow a superintendent of a mercantile marine (d) Kow registrar-general of shiiiping and sea- 
 
 otficc ; 2-3 & '.'6 Viet. e. (53, s. 15 ; ante, p. 662, men ; see 35 & 30 A'ict. c. 73, s. 4, 
 note (f).
 
 608 M. S. ACT, 1854, PART o. 
 
 Changes in crm- ] 08. The ina.stoi' of overv loreign-goiiig ship of wliich tlic crew has been engaged 
 
 to be rcporteil. ] .eforc a .shipping master («) sluiU before finally leaving the U. K. sign and send to 
 
 tlie nearest shijiping master («) a full and accurate statement, in a form sanctioned 
 
 by the Board of Trade, of every change -which takes place in his crew before 
 
 tinally leaving the U. K., and in default shall for each ofl'ence incur a penalty 
 
 not exceeding ol. ; and such statement shall be admissible in evidence, subject to 
 
 all just exceptions. 
 
 Seamen engaged 159. Eyerv master of a ship who if such ship is registered in the U. K. engages 
 in the colonics v t. •.• i •"■ • -r ^1 ■, -^ 1 ■, t. ■ • ," ^ 
 
 to be shipped any seaman m any British possession, or if such ship belongs to any British pos- 
 
 beforc a certain session engages any seaman in any Ijritish possession other than that to which 
 ° '^"'- the sliip belongs, shall, if tliere is at the place where such seaman is engaged any 
 
 official shipping master (a) or other officer duly appointed for the purpose of 
 shipping seamen, engage such seamen before sucli shipping master (a) and if there 
 is no such shipping master ((() or officer, then before some^ officer of customs ; and 
 the same rules, (qualifications, and j^enalties as are herein-beforc specified witli 
 respect to the engagement of seamen liefore shipijing masters (a) in the U. K. shall 
 'U'Pb' to such engagements in a British possession ; and upon every such engage- 
 ment such shipping master («) or officer as aforesaid shall indorse npon the 
 agreement an attestation to the etleet that the same has been signed in Ms pre- 
 sence, and otherwise made as hereby required ; and if in any case such attestation 
 is not made, the burden of proving that the seaman was duly engaged as hercliy 
 required sliall lie upon the master. 
 Seamcit^engaged 160. Every master of a British ship who engages any seaman at any place out 
 to be shipped^ ^ ^^ H. M.'s dominions in which there is a British consular officer slaall, before 
 \\ ith tiic sine- ciurying such seaman to sea, procure the sanction of such officer, and shall engage 
 pi'"sem'o"f Uie '"^^'^^^ se;unen before such officer; and the same rules as are herein-beforc con- 
 consni (/>). tained with respect to the engagement of seamen before shipping master (a.) in the 
 
 V. K. shall ap]ily to sucli engagements made liefore consular officers ; and upon 
 every such engagement the consul?.r officer shall indorse upon the agreement his 
 sanction thereof, and an attestation to the elfect that the same has been signed in 
 his presence, and othei-Avise made as are hereby required ; and every master who 
 engages any seaman in any place in which there is a consular officer, otherwise 
 tlian as herein-before reijuired, shall incur a penalty not exceeding 2(i/. ; and if in 
 any case the indorsement and attestation hereby recpiired is not made rqioii the 
 agreement, the burden of proving the engagement to have Ijeen made as herein- 
 Tjefore required shall lie upon the master. 
 Rules .IS to Itil. The following rules shall be observed with respect to the production of 
 
 production of agreements and certificates of competency or service for forei^n-noiiiG; sliips ; 
 agreements and /fi,.,+ ,• . +„ .0,- \ 4. ./ .3. o o x 
 
 cmiticatesof (that In to sa\,) 
 
 masters and (1.) ihc mastcr ol every loreign-going ship shall, on signmg the agi-eement 
 
 !^^**"?h'^?s"^"' ^^^th his crew, produce to the shipping master (a) before whom the same 
 
 °'^ " " "" is signed the certiticates of competency of service which the said master 
 
 and his first and second mate or only mate, as the case may be, are 
 
 Jtereby reqnii'cd to possess ; and upon such production being duly made, 
 
 and the agreement being duly executed as hereby lequired, the sliipping 
 
 master (a) shall sign and give to the master a certificate to that effect : 
 
 (2.) In the case of running agreements for foreign-going ships the shijiping 
 
 mastcr (c) shall, before tlie second and every subsequent voyage made 
 
 after the first commencement of the agreement, sign and give to the 
 
 master on his complying with the provisions herein contained witli 
 
 respect to such agreements, imd producing to the shipping master («) the 
 
 certificate of competency or service (jf any first, second, or only mate then 
 
 first engaged by him, a certificate to tliat ettect : 
 
 (:3.) The master of every foreign-going ship shall, liefore proceeding to sea, 
 
 produce the certificate so to be given to him by the shipping master («) 
 
 as aforesaid to the collector or comptroller of customs, and no officer of 
 
 customs shall clear any such ship outwards without such production ; 
 
 and if any such ship attempts to go to sea without a clearance, any such 
 
 officer may detain her until such certificate as aforesaid is i)roduced : 
 
 ((/) >s(iw a snpenulendent of a mercantile ('») This i.- nnlya directoi'vprov siou ; 2'Vf(;cr v. 
 
 marine otticc ; 25 & 2U Vict. c. 63, s. 16; aitti: i/M«W(, 2 G. D. (.n.S.) 512. 
 p. 623. note (o).
 
 1.7 il' IS vicr. c. 104. 0(39 
 
 (4.) Tho master of ovoiy foroi^u-guiug skip shall, within 48 hoi;r.s after the 
 
 fship's arrival at her final port of destination in the U. K., or upon the 
 
 discharge of the crew, whichever first happens, deliver such agreement 
 
 to a shijiping master (c) at the place ; and such shipping master {c) 
 
 shall thereupon give to the master a certificate of such delivery ; anc|. no 
 
 officer of customs shall clear any foreign-going ship inwards without the 
 
 production of such certificate : 
 
 And if the master of any foreign-going ship fails to deliver the agi'eement to a 
 
 shipping master (c) at the time and iix the mamier hereby directed, he shall for 
 
 every default incur a penalty not exceeding 5l. 
 
 162. The following rules shall be observed with respect to the production of Rules as to pro- 
 agreements and certificates of competency or service for home-trade ships ; (that moats'aiid'a;^--'^' 
 is to say,) tintatcs for 
 
 (1,) In the case of home-trade ships of more than 80 tons btirden, no agreement I'ome-trado 
 shall extend beyond the next following 30th day of June or 31st day of - 
 December, or the first arrival of the ship at her final port of destination 
 in the U. K. after such date, or the discharge of cargo consef[uent upon 
 such arrival : ((') 
 (2.) The master or owner of every such ship shall, mthin 21 days after the 
 30th day of Juire and the 31st day of December in every year, transmit 
 or deliver to some shipping master (c) in the U. K. every agreement 
 made within the six calendar months next preceding such days respec- 
 tively ; and shall also, in the case of home-trade passenger ships, produce 
 to the shipping master (c) the certificates of competency or service which 
 the said master, and his first or only mate, as the case may be, are hereby 
 required to possess : 
 (3,) The shipping master (c) shall thereupon give to the master or owner a 
 certificate of such delivery and production ; and no officer of customs 
 shall grauu a clearance or transire for any such ship as last aforesaid 
 without the production of such ct-rtificate ; and if any such ship attempts 
 to ply or go to sea without such clearance or transire, any such oflS.cer 
 may detain her until the said certificate is produced : 
 And if the agreement for any home-trade ship is not delivered or transmitted by 
 the master or owner to a shipping master (c) at the time and in the manner 
 hereljy directed, such master or owner shall for every default incur a penalty not 
 exceeding 5/. 
 
 163. Every erasure, interlineation, or alteration in any such agreement wdth Alterations to be 
 seamen as is required bj^ the third part of this Act (excej^t additions so made as ^oki unless at- 
 hereinbefore directed for shipping substitutes or persons engaged subsecptently to been made with 
 the first departure of the ship) shall be wholly inoperative, unless proved to have the consent of 
 been made with the consent of all the persons interested in such erasure, inter- *'^^' P'"*"'^^- 
 lineation, or alteration by the written attestation (if made in H. il.'s dominions) 
 
 of some shipping master, (c) justice, officer of customs, or other public functionary, 
 or (if made out of H. M.'s dominions) of a British consular officer, or, where there 
 is no such officer, of two respectable British mei'chants. 
 
 164. Every person who fraudulently alters, assists in fraudulently altering, or Penalty for 
 procures to be fraudulently altered, or makes, or assists in making, or procures to memf ^°° agree-. 
 be made, any false entry in, or delivers, assists in delivering, or prociu'es to be 
 delivered, a false copy of any agreement, shall for each such oftence be deemed 
 
 guilty of a misdemeanor. 
 
 165. Any seaman may bring forward evidence to prove the contents of any Seamen not to 
 agreement or othermse to support his case, without producing or giving notice to ^° ''°""'' *° P'"°- 
 produce the agreement or any copy thereof (c). agreement. 
 
 166. The master shall at the commencement of every voyage or engagement Copy of agree- 
 cause a legilile copy of the agreement (omitting the signatures) to be placed or "eess^birt ™'^'''' 
 posted up in such part of the ship as to be accessible to the ciew, and in defarrlt crew. 
 
 shall for each offence incur a penalty not exceedirrg 5/. 
 
 167. Any seaman who has signed an agreement, and is afterwards discharged Seamen dLs- 
 before the commencement of the voyage, or before one month's wages are earned, voya^^c'to hav^ 
 
 (c) Now superintendent of a mercantile marine (r) See the Isabella, 2 C. Rob. 241. 
 
 office. 
 ('0 See 33 & 36 Vict. c. 73. s. 16, j^ost.
 
 G70 
 
 :\r. s. ACT, 1851' 
 
 rAir 
 
 wlUiout fiuilt on liis i">;irl justifymg such clLscliarge and witliout his consent, sliall 
 be entitled to receive from the master or owner, in addition to any wages he may 
 have earned, due compensation lor the damage thereby caused to him, not exceed- 
 ing one month's wages, and may, on adducing such evidence as the court hearing 
 the case deems satisfactory of his having been so improperly discharged as afore- 
 said, recover siicli compensation as if it Avere wages duly earned. 
 
 AUotmcrit of 
 
 r.cgulations as 
 lo allotmeuc 
 notes. 
 
 Allotment note? 
 may be sued on 
 summarily by 
 certain persons 
 and under 
 certain eondi- 
 tions (.<(). 
 
 Allothient of JFafies (a). 
 
 168. All stipvtlations for the allotment of any part of the wages of a seaman 
 during liis absence which are made at the commencement of the voyage shall be 
 inserted iir the agreement, and shall state the amounts and times of the pa}ments 
 to be made ; and all allotment notes shall be in forms sanctioned by the Board of 
 Trade. 
 
 169. The wife, or the father or mother, or tlie grandfather or grandmother, or 
 any child or grandchild, or' any brother or sister of any seanian in whose favour 
 an allotment note of part of the wages of such seaman is made, may, unless the 
 seaman is shown in manner hereinafter mentioned to have forfeited or ceased to 
 be entitled to the wages out of which the allotment is to be paid, and suliject, as 
 to tlie wife, lo the provision hereinafter contained, sue for and recover the sums 
 allotted by the note when and as tlie same are matte payable, with costs, from the 
 owner (h) or any agent who has authorized the drawing of the note, either in the 
 C?ounty Court or in the summary manner in which seamen are by this Act enabled 
 to sue for and recover wages not exceeding 50/., and in any .such proceeding it 
 shall be sufficient for the claimant to prove that he or she is the person mentioned 
 in tlie note, and that the note was given l)y the owner or by the master, or some 
 other authorized agent ; and the seaman shall be presumed to be dixly earning his 
 wages, unless the contrary is shown to the satisfaction of the court, either by 
 the official statement of the change in the crew caused by his absence made and 
 .sigoied by the master, as by this Act is required, or by a dulj- certified copy of 
 some entry in the official log-book to the etfect that he has left the shiji, or by a 
 credible letter from the master of the .ship to the same effect, or by such otlier 
 evidence, of whatever description, as the court in its absolute discretion considers 
 sufficient to show satisfactorily that the seaman has ceased to be entitled to the 
 wages out of which the allotment is to be paid : Pro\dded that the wife of any 
 seaman who deserts her children, or so misconducts herself as to be undeserving 
 of support from her husband, shall thereupon forfeit all right to further jiaywents 
 of any allotment of his wages which has been made in her favour. 
 
 Discharoc avd 
 Paiimtnt of 
 
 Discharge from 
 foroign-sroiag 
 Hhips to be made 
 before a 
 superintendent 
 of a mercantile 
 mai'lne office. 
 
 Master to de- 
 liver account of 
 )vage.s («). 
 
 Discharge, and Poymevt of JJ'iige!i(a.) 
 
 IVO. In the case of all British foreign-going .ships, in whatever part of H. M.'s 
 dominions the same are registered, all seamen discharged in the U. K. .shall be 
 discharged and receive their wages in the presence of a shipping master (b) duly 
 appointed under this Act, except in cases where some competent court otherwise 
 directs ; and any master or owner of any such ship who discharges any seaman 
 belonging thereto, or, except as aforesaid, pays his wages within the U. K. in any 
 otlier manner, shall incur a penalty not exceeding 10/. ; and in the case of home- 
 trade ships seamen may, if the owner or ma!5ter so desires, be discharged and 
 receive their wages in like manner. 
 
 171. Every master shall, not less than 24 hours before paying otf or discharging 
 any seaman, deliver to him, or, if he is to be discharged before a shipping 
 master, (f) to such shipping master, a full and true account in a form sanctioned 
 by the Board of Trade of his wages, and of all deductions to be made therefrom 
 
 (</) ,Sce 43 &. 44 Vict. c. 16, post, 
 (b) As to when tlie registered owner is noi 
 liable when he has demised and parted witli 
 
 .ill control of the vessel, .see Meiklereidx.Wfsl, 
 1 Q. B. D. 428, 46 L. J. M. C. 91. 
 
 (c) Now a superintendent of a mercantile 
 niarine office, 25 & 26 Vict. c. 63, s, V>.
 
 ir it 18 VICT. c. 104. 071 
 
 on any aoconnt wliatover, and in default shall, for each offence, incur a xx'ualty 
 not exceeding 5/. ; and no deduction from the wages of any seaman (except in 
 respect of any matter liappening after such delivery) shall be allowed unless it is 
 included in the account so delivered ; and the master shall, during the voyage, 
 enter the various matters in respect of which such deductions are made, Avith the 
 amounts of the respective deductions, as they occur, in a book to be kept for that 
 purpose, and shall, if required, produce such book, at the time of the payment of 
 wages, and also upon the hearing before any competent authority of any complaint 
 or question relating to such i)ayments. 
 
 172, Upon the discharge of any seaman, or upon payment of his wages, the On discliargc, 
 master shall sign and give him a certificate of his discharge, in a form sanctioned "vj^^^en^cpi.^'ii? 
 by the Board of Trade, specifying the period of his service and the time and place catos of dis- 
 of his discharge ; and if any master fails to sign and give to any such seaman ciiaigc ami 
 such certificate of dist'harge, he shall for each such offence incur a penalty not cates of^compc- 
 exceeding 10/. ; and the master shall also, upon the discharge of every certifi- tcucy or service 
 cated mate whose certillcate of competency or service has been delivered to and ^° mates, 
 retained liy him, return such certiticate, and shall in default incur a penalty not 
 exceeding 201. 
 
 173, Every shipping master (rZ) shall hear and decide any c^uestion Avhatever, Suporiuiendcnt 
 lietween a master or owner and any of his crew, which both parties agree in malin'e fmlco "^ 
 -waiting to sulimit to him ; and every award so made Ijy him shall lie binding on may decide 
 both parties, and shall in any legal proceeding which may be taken in the matter '^^"^^^^'''"f y''"''^|^ 
 before any Court of Justice be deemed to be conclusive as to the rights of the jiim. 
 parties ; and no such submission or award shall require a stamp ; and any docu- 
 ment purporting to be such submission or award shall be immd facie evidence 
 
 thereof. 
 
 174, In any proceeding relating to the wages, claims, or discharge of any Master and 
 seaman carried on before any shipping master (</) under the provisions of this ^lu'.o'^^Vi'p's^"" 
 Act, sucli shipping master (f?) may call upon the owner or his agent, or npon the papers to super- 
 master or any mate or other member of the crew, to produce any log-books, papers, inteudents of 
 or other documents in their respective possession or power relating to any matter marine otiices 
 in f[uestion in such proceeding, and may call l)efore him and examine any of such and give 
 persons being then at or near the place on any such matter ; and every owner, evidence. 
 agent, master, mate, or other member of the crew who, Avhen called ujion by the 
 
 shipping master {d), does not produce any such paper or document as aforesaid, if in 
 his possession or jjower, or does not aj^pear and give evidence, shall, unless he 
 shows some reasonable excuse for such defatilt, for each such offence incur a 
 penalty not exceeding bl. 
 
 175, The following rules shall be observed with respect to the settlement of f^ettiement of 
 wages ; (that is to saj',) wages. 
 
 (1,) Upon the completion before a shipping master ((?) of any discharge and Release how to 
 settlement, the master or owner and each seaman shall respectively, in ^^^^g^lg^l'^ ""'^ 
 the presence of the shipping master (d), sign, in a form sanctioned Ijy the 
 Board of Trade, a mutual release of all claims in respect of the past 
 voyage or engagement, and the shipping master (d) shall also sign and 
 attest it, and shall retain and tiansmit it as herein directed : 
 
 (2.) Such release so signed and attested shall operate as a mutual discharge and To be a dis- 
 settlement of all demands lietween the parties thereto in respect of the cliarge ; 
 j/ast voyage or engagement : 
 
 {?).) A copy of such release, certified under the hand of such shij^ping master {d) to ^.nd to be evi« 
 be a true copy, shall be given by him to any party thereto requiring the '^*^"'"^' 
 same ; and such copy shall be receivable in evidence upon any future 
 question touching such claims as aforesaid, and shall have all the effect 
 of the original of which it purports to be a copy : 
 
 (4.) In cases in which discharge and settlement before a shipping master {d) are No other receipt 
 hereliy required, no payment, receipt, settlement, or discharge otherwise ^^^^^J^ '^^^' 
 made, shall operate or be admitted as evidence of the release or satisfac- 
 tion of any claim : , 
 
 (5.) Upon any payment being made by a master before a shipping master (fZ), Vouchor to bo 
 the shipping master shall, if required, sign and give to such master a siwn to master 
 statement of the whole amount so paid ; and such statement shaU, as dence!*^ '^° ''^ '" 
 
 ('?) See ante, \\ 670. uotc (p) ; see -iS & d4 Vict, c, IC
 
 672 
 
 M. S. ACT, 1854, PAl^T 
 
 Master to make 
 wports of cha- 
 ractci". 
 
 l)otwoon the iiia.stci' uiul hit; employer, be received as evideuco that ho 
 
 has made the payments therein mentioned. 
 176. Upon every discharge effected before a shipping master (a) the master 
 shall make and sign, in a form sanctioned by the Board of Trade, a report of the 
 conduct, character, and qualifioations of the persons discharged, or may state, in a 
 column to be left for that purpose in the said form, that he declines to give any 
 opinion upon such particulars, or upon any of them ; and the shipping master (a) 
 shall transmit the same to the registrar general of seamen (/»), or to such other person 
 as the Board of Trade directs, to be recorded ; and shall, if desired so to do by 
 any seaman, give to him, or indorse on his certificate of dischai'ge, a copy of so 
 much of such report as concerns him ; and every person who makes, assists 
 in making, or procures to be made, any fabe certihcate or report of the service, 
 qualifications, conduct, or character of any seaman, knoAnng the same to be false, 
 or who forges, assists in forging, or jirocures to be forged, or fraudulently alters, 
 assists in fraudulently altering, or prociu-es to be fi-auduiently altered, any such 
 certificate or report, or who fraudulently makes use of any certificate or report, or 
 of any copy of any certificate or report Avhich is forged, or altered, or does not 
 belong to him, shall, for each such offence, be deemed guilty of a misdemeanor, 
 
 r,cmitlanee of 
 )\'(t;ies, and 
 
 Siirivfis Banls 
 fur Seamen, 
 
 Facilities maybe 
 irivcu for remit- 
 t mg seamen's 
 wages. 
 
 Power to 
 
 jiay wlien order 
 
 is lost. 
 
 Penalty for 
 issuing money 
 orders with 
 fraudulent 
 intent. 
 
 Savings banks 
 for seamen 
 may be 
 established ('•)• 
 
 Bemittance of Wages, and Savings Banks for Seamen. 
 
 177. Facilities shall, if the Board of Trade so directs, be given for remitting the 
 wages and other moneys of seamen and apprentices to their relatives or other 
 persons l:)y means of monej' orders issued by shipping masters («) ; and the Board of 
 Trade may make regulations concerning such orders, and the persons by or to 
 whom, and the mode and time in and at wliich, the same are to be paid, and may 
 from time to time repeal or alter any such regulations ; and all such regulations, 
 so long as they are in force, shall be binding upon all persons interested or claim- 
 ing to be interested in such orders, as well as upon the officers employed in issuing 
 or paying the same ; and no legal proceeding shall be instituted against the Boarcl 
 of Trade, or against any shipping master (o) or other public officer employed 
 about such orders, on account of any such regulations, or on account of any act 
 done or left undone in piu'suance thereof, or on account of any refusal, neglect, or 
 omission to pay any such money order, unless such refusal, neglect, or omission 
 arise from fraud or Avilful misl.iehaviour on the part of the person against whom 
 proceedings are instituted. 
 
 178. The Board of Trade may, in any case in which it thinks fit so to do, cause 
 the amount of any such money order as aforesaid to be paid to the person to whom 
 or in whose favour the sanre may have been granted, or to his personal rei)resen- 
 tatives, legatees, or next of kin, nofn-ithstanding that ^uch order may not be in his 
 or their possession ; and in all such cases from and after such payment the Board 
 of Trade, and every shipping master (a) or other officer of the Board of Trade, 
 shall be freed from* all liability in-respect of such order. 
 
 179. Every shipping master (a) or other public officer who grants or issues any 
 money order with a fraudulent intent shall in England or Ireland be deemed guilty 
 of felony, and in Scotland of a high crime and oftence, and shall be liable to be 
 kept in penal servitude for a term not exceeding 4 years [now 5 years]. 
 
 180. The commissioners for the reduction of the national debt, or the comp- 
 troller-general acting imder, them, may, on the application and recommendation 
 of the Board of Tracle, establish sa^dngs banks at such ports and places within the 
 U. K., either in the shipping offices (d) established in such ports or elsewhere, as 
 may appear to be expedient, and may appoint treasurers to receive from or on 
 account of seamen, or the wives and families of seamen, desirous to become 
 depositors in such savings banks, deposits to an amount not exceeding 150^. in the 
 
 (a) Now a superintendent of a mercantile 
 marine oftice, 26 & 26 Vict. c. 63, s. 15. 
 
 (h) Xow registrar-general of shipping and sea- 
 men ; see 35 & 3C Vict. c. 73, s. 4, 
 
 (c) See 18 & 19 Vict. c. 01. s. 17. ^wst, 19 & 20 
 Vict. c. 41. 
 
 (i?) Now mercantile marine ofiaces, 25 Si 20 Vict, 
 c. 63, s. 16.
 
 17 & 18 viOT. c. 104 67a 
 
 whole in respect of any one account, under such regulations as may be prescribed 
 by the said commissioners or comptr(jller-general ; and such regulations shall be 
 binding on all such treasurers and dejDositors ; and the said commissioners may 
 remove such treasurers, and appoint others in their place ; and all the provisions , 
 
 of the Acts now in force relating to savings banks, except so far as relates to the 
 annual amount of deposit, shall apply to all savings banks which may be estab- 
 lished imder the authority of thig Act, and to such treasiirers and depositors as 
 aforesaid, 
 
 Legal Rights to Wages. Legal mahts 
 
 to Wages. 
 
 181. A seaman's right to wages and provisions shall be taken to commence Right to wages 
 either at the time at which he commences work, or at the time specified in stons^ when 
 the agreement for his commencement of work or presence on board, whichever to begin, 
 first happens. 
 
 182. No seaman shall by any agreement forfeit his lien upon the ship, or be fg^y^up* 
 deprived of any remedy for the recovery of his wages to which he would other- certain 
 wise have been entitled ; and every stipulation in any agreement inconsistent with rights, 
 any provision of this Act, and every stipulation by which any seaman consents to 
 abandon his right to wages in the case of the loss of the ship, or to abandon any 
 
 right which he may have or obtain in the nature of salvage (d), shall be wholly 
 inoperative. 
 
 183. No right to wages shall be dependent on the earning of freight; and Wages not to 
 every seaman and apprentice who would be entitled to demand and recover any q^ the^eam-^ 
 wages if the ship in which he has served had earned freight, shall, subject to ail ing freight. 
 other rules of law and conditions applicable to the case, be entitled to claim and 
 
 recover the same, notwithstanding that freight has not been earned ; but in all 
 cases of wreck or loss of the ship, proof that he has not exerted himself to the 
 utmost to save the ship, cargo, and stores, shall bar his claim. 
 
 184. If any seaman or apprentice to whom wages are due under the last preced- In case of 
 ing enactment dies before the same are paid, they shall be paid and applied in the ^!jfg^,' t"*^^Q 
 manner hereinafter specified with regard to the wages of seamen who die during paid as after 
 a voyage. mentioned. 
 
 185. In cases where the service of any seaman terminates before the period Kigiits to 
 contemplated in the agreement by reason of the wreck or loss of the ship, and also ^"fenn°natioii 
 in cases where such service terminates before such period as aforesaid by reason of of seiTice 
 his being left on shore at any place abroad under a certificate of his unfitness or nn^'^*^'''^ "' 
 inability to proceed on the voyage granted as hereinafter mentioned, such seamen 
 
 shall be entitled to wages for the time of service prior to such termination as afore- 
 said, but not for any further period. 
 
 186. No seaman or ajjprentice shall be entitled to wages for any jDeriod during Wages not to 
 which he iinlaA\^ully refuses or neglects to work when required, whether before or '"^ccrue during 
 after the time fixed by the agreement for his beginning work, nor, unless the court work or 
 hearing the case otherwise directs, for any period during which he is lawfully imprisonment, 
 imprisoned for any ofi'ence committed by him. 
 
 187. The master or owner of every ship shall pay to every seaman his wages Period within 
 mthin the respective periods following ; (that is to say,) in the case of a home- ^hicli wages 
 trade ship within two days after the termination of the agreement or at the time pLid.^ ^' 
 when such seaman is discharged, whichever first happens ; and in the case of all 
 
 other ships (except ships employed in the Southern Whale Fishery or on other 
 voyages for which seamen by the terms of their agreement are wholly compen- 
 sated by shares in the profits of the adventure) within three days after the cargo 
 has been delivered, or within five days after the seaman's discharge, whichever 
 first happens ; and in all cases the seaman shall at the time of his discharge be 
 entitled to be paid on account a sum equal to one-fourth part of the balance due 
 to him ; and every master or owner who neglects or refuses to make payment in 
 
 B. & L._210. The GanffC.% 38 L. J. Ad. 61 ; L. R. 
 
 (d) See 25 & 26 Tict. c. 63, s. 18. post. The B. & L. 2 
 nosario, 46 L. J. Ad. 52. The Pride of Canada. 2 Ad. 374
 
 674 
 
 M. S. ACT, 1854, PAET 3, 
 
 manner aforesaid, without sufficient cause, shall pay to the seaman a sum not 
 exceeding the amount of two days' pay for each of the days, not exceeding ten 
 days, during wluch paj-ment is delayetl beyond the respective periods aforesaid, 
 and such sum shall be recoverable as wages. 
 
 3[ode of 
 Tecoveri'iio 
 
 Seamen may 
 sue for 
 wages in a 
 Mimmnry 
 luanucr." 
 
 Restrictions on 
 f-iiits for wages 
 in superior 
 conrts. 
 
 No seaman 
 to sue for 
 wages abroad, 
 except in 
 cases of dis- 
 charge Qr 
 of danger to 
 life. 
 
 Master to have 
 same remedies 
 for wages as 
 seamen. 
 
 Mode of recovering Wages. 
 
 188. Any seaman or apprentice, or any person duly authorized on his behalf, 
 may sue in a summaiy manner before any two justices of the peace acting in or 
 near to the place at which the service has terminated, or at which the seaman or 
 apprentice has been discharged, or at which any person upon whom the claim is 
 made is or resides, or in Scotland either before any such justices or before the 
 sheriff of the coxmty within which any such place is situated, for any amount of 
 wages due to such seaman or ajjprentice not exceeding £50 over and above the 
 costs of any proceeding for the recovery thereof, so soon as the same becomes 
 payable ; and every order made by such justices or sheriff in the matter shall be 
 final. 
 
 189. No suit or proceeding for the recoverj' of wages imder the sum of 50/. 
 shall (rt) be instituted by oi- on liehalf of any seaman or apprentice in any Court of 
 Admiralty or Vice-Admiralty, or in . the Coiu't of Session in Scotland, or in any 
 superior Court of Eecord in H. M.'s dominions, unless the owner of the ship (h) is 
 adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is 
 sold by the attthority of any such court as aforesaid, or imless any justices acting 
 under the authority of this Act refer the case to be adjudged by such court, or 
 xtnless neither the owner nor master is or resides (c) within twenty miles of the 
 place where the seaman or apprentice is discharged or put ashore. 
 
 190. No seaman who is engaged for a voyage or engagement which is to ter- 
 minate in the U. K. shall be entitled to sue in any court abroad for wages, unless 
 he is discharged with such sanction as herein required aud with the written cousent 
 of the master, or proves such ill-usage on the part of the master or by his authority 
 as to warrant reasonable apprehension of danger to the life of such seaman if he 
 were to remain on board ; but if any seaman on his return to the U. K. proves 
 that the master or o^niier has been guilty of any conduct or default which but for 
 this enactment would have entitled the seaman to sue for wages before the termi- 
 nation of the voyage or engagement, he shall be entitled to recover in addition to 
 his wages such compensation not exceeding 201. as the court hearing tlie case 
 tliinks reasonable. 
 
 191. Every master of a ship shall, so far as the case permits, have the same 
 lights, liens, and remedies for the recovery of his wages which by this Act or by? 
 any law or custom any seaman, not being a master, has for the recovery of his] 
 wages ; and if in any proceeding in any Court of Admiralty or Vice-Admiralty] 
 touching the claim of a master to wages any right of set-off or counter-claim is set] 
 up, it shall be lawful for such court to enter into and adjudicate upon all ques-| 
 tions and to settle all accounts then arising or outstanding and unsettled between! 
 the parties to the proceeding, and to direct payment of any balance which iaj 
 found to be due. 
 
 Relief to Sea- 
 
 'men's Families 
 
 out of 
 
 Poor Bates. 
 
 Relief to 
 seamen's fami- 
 lies to be 
 chargeable on 
 
 Relief to Seamen's Families out of Poor Rates. 
 
 192. Whenever during the absence of any seaman on a voyage his •nife, chil- 
 di-en, and step-children, or any of them, become or becomes chargeable to anyj 
 itnion or parish in the U. K., such union or parLsh shall be entitled to be reim- 
 biu'sed out of the wages of such seaman earned during such voyage any sums pro-l 
 
 (n) The Harriett, Lush. 285. 
 
 (h) As to this Act applying to wages earned on 
 
 a foreign ship, see Burns v. Chapman, o C. B< 
 
 (X.S.) 481 ; 28 L. J. C. P. 6. 
 
 (c) The Blakeneu, Swab. 428.
 
 17 & 18 VICT. c. 104. 
 
 675 
 
 perly exjiended during hi>i absence in the maintenance of lii.'^ said relations, or any » c'^'itain pro- 
 of ttiem, so tliat such sums do not exceed the folloAving proportions of his said theh-'°wa*^^es 
 wages ; (that is to say,) 
 
 (1.) If only one of such relations is chargeable, one-half of such wages : 
 (2.) If two or more of such relations are chargeable, two-tliirds of such wages : 
 But if during the absence of the seaman any sums have been paid by the owner to 
 or on behalf of any such relation as aforesaid under an allotment note given by 
 the seaman in his, her, or their favour, any such claim for reimbursement as afore- 
 said shall be limited to the excess (if any) of tlie proportion of the wages herein- 
 before mentioned over the sums so paid. 
 
 193. For the purpose of obtaining such reimbursement as aforesaid, the guar- Notice to be 
 dians of the union or parish, where the relief of the poor is administered by guar- f mfcUai-go^*'' ' 
 dians and the overseers of the poor of any other parish in England, and the to bo 
 guardians or other persons having the authority of guardians in any union in t]\^°!et"u-n'^ 
 Ireland, and the inspector of the poor in Scotland, may give to the owner of the of the 
 ship in which the seaman is serving a notice in writing stating the proportion of soauian. 
 the seaman's wages upon which it is intended to make the claim, and requiring 
 the OAvaier to retain such proportion in his hands for a peri(5d to l)e therein men- 
 tioned, not exceeding 21 days from the lime of the seaman's return to his port of 
 discharge, and also requiring such owner immediately on such return to give to 
 such guardians, overseers, persons, or inspector notice in writing of such return ; 
 and such owner, after receiving such notice as aforesaid, shall be bound to retain 
 the said proportion of wages, and to give notice of the seaman's return accordingly, 
 and shall likewise give to the seaman notice of the intemled claim ; and the said 
 guardians, overseers, persons, or inspector may upon the seaman's return apply in 
 a summary way in England or Ireland to any two justices having jurisdiction in 
 such union or parish as aforesaid, and in Scotland to the sheriff of the county, for 
 an order for such reimbursement as aforesaid ; and such justices or sheriff may 
 hear the case, and may make an order for such reimbursement to the whole 
 extent aforesaid, or to such lesser amount as they or he may under the circum- 
 stances think fit ; and the owner shall pay to such guardians, overseers, persons, or 
 inspector, out of the seaman's wages, the amount so ordered to be paid by way of 
 reimbursement, and shall pay the remainder of the said wages to the seaman ; and 
 if no such order as aforesaid is obtained within the period mentioned in the notice 
 so to be given to the owner as aforesaid, the proportion of wages so to be retained 
 by him as aforesaid shall immediately on the expiration of such period, and with- 
 out deduction, be payable to the seaman. 
 
 Wages and Effects of deceased Seamen. Wages and 
 
 Effects of 
 deceased 
 
 194. Whenever any seaman or apprentice belonging to or sent home in any Scanmi. 
 British ship, whether a foreign-going ship or a home-trade shi2>, employed on a Masters to 
 voyage which is to terminate in the U. K., dies during such voyage, the master ^^^'^,^^^^''8'° 
 .shall take charge of aU money, clothes, and effects which he leaves on board, and effects of de- 
 shall, if he thinks fit, cause all or any of the said clothes and eftects to be sold by '^^^^^^^^'^^ 
 auction -at the mast or other public auction, and shall thereupon sign an entry in onboardfand 
 the official log-book containing the following particulars ; (that is to say,) enter the 
 
 (1.) A statement of the amount of the money and a description of the effects so du^fif the^"°^^ 
 left liy the deceased : _ official log. 
 
 (2.) In case of a sale, a description of each article sold, and the sum received 
 for each : 
 
 (3.) A statement of the sum due to the deceased as wages, and the total amount 
 of the deductions (if any) to be made therefrom : 
 And shall cause such entry to be attested by a mate and by one of the crew. 
 
 195. In the cases provided for by the last preceding section, the following rules sueh effects 
 shall be observed ; (that is to say,) ^ . to b ^'^^d^ 
 
 (1.) If the ship proceeds at once to any port in the U. K. without touching gftjjgj.'^^' ^o^g^,, 
 on the way at any foreign port, the master shall within 48 hours &c. with 
 after his arrival deliver any such effects as aforesaid remaining unsold, *"'^ accounts. 
 '2x2
 
 676 
 
 M. S. ACT, 1854, PAET 3, 
 
 Penalties for 
 not taking 
 charge of, 
 remitting, or 
 accounting for 
 Mich moneys 
 and effect;! 
 
 Officers of 
 customs ami 
 consnls to 
 take charge 
 of effects 
 
 and pay any money -vvlnch lie has taken charge of or received from such 
 sale as aforesaid, and also the balance of ■\vages due to the deceased, to 
 the shipping master (a) at the port of destination in the U. K. : 
 
 (2.) If, the ship touches and remains for 48 hours at some foreign port or at 
 some port in H. M.'s dominions abroad before coming to any port in 
 the U. K., the master shall report the case to the British consular officer 
 or officer of customs there, as the case may be, and shall give to such 
 officer any information he requires as to the destination of the ship and 
 probable length of tlie voyage ; and such officer may thereiipon, if he 
 considers it expedient so to do, requii-e the said effects, money, and wages 
 to be delivered and paid to him, and shall upon such delivery and pay- 
 ment give to the master a receipt, and the master shall witliin 48 houi-s 
 after his arrival at his port of destination in the U. K. produce the same 
 to the shipping master (a) there ; and such consular olficer or officer of 
 customs shall in such case indorse and certify upon the agreement ■with 
 the crew such particulars with respect to such delivery and payment as 
 the Board of Trade requii'es : 
 
 (3.) If such officer as aforesaid does not require such payment and delivery to 
 be made to him, the master shall take charge of the said effects, money, 
 and wages, and shall within 48 hours after his arrival at his port uf 
 destination in the U. K. deliver and pay the same to the shipping 
 master («) there : 
 
 (4.) The master shall in all cases in which any seaman or apprentice dies dur- 
 ing the progress of a voyage or engagement give to the Board of Trade, or 
 to such officer or shipping master («) as aforesaid, an account in such form 
 as they respectively require of the effects, money, and wages so to be 
 delivered and paid ; and no deductions claimed in such accoimt shall be 
 allowed unless verified, if there is any official log-book, by such entry 
 therein as hereinbefore required, and also by such other vouchers (if any) 
 as may be reasonably required by the Board of Trade, or by the officer 
 or shipping master (a) to whom the account is rendered : 
 
 (5.) Upon due compliance with such of the provisions of this section as relate 
 to acts to be done at the port of destination in the U. K., the shipping 
 master («) shall grant to the master a certificate to that effect, and no 
 officer of customs shall clear inwards any foreign-going ship without the 
 production of such certificate. 
 
 196. If any master fails to take such charge of the money or other effects of a 
 seaman or apprentice dying during a voyage, or to make such entries in respect 
 thereof, or to procure such attestation to such entries, or to make such payment or 
 delivery of any money, wages, or effects of any seaman or apprentice dying during 
 a voyage, or to give such accotmt in respect thereof as hereinbefore respectively 
 directed, he shall be accountable for the money, Avages, and effects of the seaman 
 or apprentice to the Board of Trade, and shall pay and deliver the same accord- 
 ingly ; and such master shall in addition for every such offence inciu' a penalty 
 not exceeding treble the value of the money or effects not accounted for, or, if such 
 value is not ascertained, not exceeding 50/., and if any such money, wages, or 
 effects are not duly paid, delivered, or accounted for by the master, the owner of 
 the ship .shall pay, deliver, and account for the same, and such money and wages 
 and the value of such effects shall be recoverable from him accordingly ; and if he 
 fails to account for and pay the same, he shall, in addition to his liability for the 
 said money and value, inciir the same penaltj- which is hereinbefore mentioned as 
 incurred by the master for the like offence ; and all mone}', wages, and effects of 
 any seaman or apprentice dying during a voyage shall be recoverable in the same 
 courts and by the same modes of proceeding by wliich seamen are hereby enabled 
 to recover wages due to them. 
 
 197. If any such seaman or apprentice as last aforesaid dies abroad, at any 
 place either in or out of H. M.'s dominions, leaving any money or effects not on 
 board Iris ship, the chief officer of customs or the British consular officer at or 
 nearest to the place, as the case may be, shall claim and take charge of such money 
 
 I 
 
 (ii) Kow a suiiei'intendent of a mercantile marine office. 23 & 2C Vict. c. 63, s. 15.
 
 17 & 18 vioT. 0. 101. 677 
 
 and effects ; and such officer shall, if he thiuks fit, sell all or any of such effects, or lefc by seamen 
 any effects of any deceased seaman or apprentice delivered to him under the pro- to^'J^-^*'^'^ 
 visions hereinbefore contained ; and every such officer sliall quarterly, or at such tiic f^ame ami 
 other times as the Board of Trade directs, remit to H. M.'s paymaster-general all [[[^^'^^^/^ses 
 moneys belonging to or arising from the sale of the effects of or paid as the wages •]^\..^^lQ ^^j^ 
 of any deceased seamen or apprentices which have come to his hands under the 
 provisions hereinbefore contained, and shall render such accounts in respect thereof 
 as the B<jard of Trade requires. 
 
 198. Whenever any seaman or apr>rentice dies in the United Kingdom, and is '^^°f^„^.^\'i' ,„„ 
 , , , , . ,. 1 . 1 "^ , . , , J- J , . „ . , , ?• 1 • • CEtects of seamen 
 
 at the time of his death entitled to claim from the master or owner oi any ship in dying at iioiqq 
 
 which he has served any unpaid wages or effects, such master or owner shall pay to be paid^iu 
 and deliver or account for the same to the shipping master (c) at the port where Boardof^rradc. 
 the seaman or apprentice was discharged, or was to have been discharged, or to 
 the Board of Trade, or as it directs. 
 
 199. If the money and effects of any deceased seaman or apprentice paid, If less than .50?. 
 delivered, or remitted to the Board of Trade or its agents, including the monies pe^fy of°ic?^'°" 
 received for any part of the said effects which have been sold either Ijeibre delivery cca-^ed seamen 
 to the Board of Trade or by its direction, do not exceed in value the sum of m»y ^°^^^^f^^ 
 bOL, then subject to the provisions hereinafter contained, and to all such pvobatc or admi- 
 deductions for expenses inciu-red in res2)ect of the seaman or apprentice or of his nistration to the 
 said money and effects as the said board thinks proper to allow, the said board fitied^rt)!'^" 
 may, if it thinks fit so to do, pay and deliver the said money and effects either to 
 
 any claimants who can prove themselves to the satisfaction of the said board either 
 to be his widow or children, or to l)e entitled to the effects of the deceased under 
 his will (if any), or under the statutes for the distribution of the effects of intes- 
 tates, or under any other statute, or at common law, or to be entitled to procure 
 probate or take out letters of administration or confirmation, although no probate 
 or letters of administration or confirmation have been taken out, and shall be 
 thereby discharged from all further liability in respect of the money and effects 
 so paid and delivered, or may, if it thinks fit so to do, require probate or letters of 
 administration or confirmation to be taken out, and thereupon pay and deliver the 
 said money and effects to the legal personal representatives of the deceased ; and 
 all claimants to whom such money or effects are so paid or delivered, shall a]3ply 
 the same in due course of administration ; and if such money and effects exceed 
 in value the sum of 50^., then, subject to the provisions hereinafter contained 
 and to deduction for expenses, the Board of Trade shall j)ay and deliver the same 
 to the legal personal representatives of the deceased. 
 
 200. Incases where the deceased seaman or apprentice has left a will, the Mode of pay- 
 Board of Trade shall have the following powers ; (that is to say), wills' maarby 
 
 (I.) It may in its discretion refuse to pay or deliver any such wages or effects seamen, 
 as aforesaid to any person claiming to be entitled thereto under a will 
 made on board ship unless such will is in writing, and is signed or 
 acknowledged by the testator in the presence of the master or first or only 
 mate of the ship, and is attested by sucli master or mate : 
 (2.) It may in its discretion refuse to pay or deliver any such Avages or effects as 
 aforesaid to any person not being related to the testator by blood or 
 marriage who claims to be entitled thereto under a will made elsewhere 
 than on board ship, uidess such will is in writing, and is signed or 
 acknowledged by the testator in the presence of two witnesses, one of 
 whom is some shiiiping master (c) appointed under this Act, or some 
 niBiister or officiating minister or curate of the place in wluch the same 
 is made, or, in a place where there are no such persons, some justice of 
 the peace, or some British consular officer, or some officer of customs, and 
 is attested by such \vitnesses : 
 Whenever any claim made under a will is rejected by the Board of Trade on 
 account of the said Avill not being made and attested as hereinbefore I'erpiu-cd, 
 the wages and effects of the deceased shall be dealt Avith as if no Avill had been 
 made. 
 
 (&) As to this section applying where a seaman, (c) Sec ante, p. 676, note (a). 
 
 &c., has, within 6 months immediately preecding (O) See 43 & 4-1 Victi c. 16, s, 
 
 his death, belonged to a British ship, isee 25 & 80 
 Vim. c. ti3, s. 20.
 
 678 
 
 31. S. ACT, 1854'j PAET 3, 
 
 Provision for 
 paymeut of just 
 claims by cre- 
 ditors, and for 
 preveutiug frau- 
 dulent claims. 
 
 IMndc of dealins 
 witli unclaimed 
 wages of de- 
 ceased seamen. 
 
 Punishment for 
 forgeiT and 
 false rcprc?on- 
 lations in order 
 Lo oblaiu wages 
 
 201. The following rules shall be observed -with respect to creditors of deceased 
 seamen and apprentices ; (that is to s<iy), 
 
 (1.) No such creditor shall be entitled to claun li'om the Board of Trade the 
 wages or effects of any such seaman or apprentice or any part thereof by 
 virtue of letters of administration taken out by him, or by virtue of con- 
 hrmation in Scotland as executor creditor : 
 
 (2.) No such creditor shall be entitled by any means whatever to payment of 
 his debt out of such wages and effects, if the debt accrued more than 
 3 years before the death of the deceased, or if the demand is not made 
 witliin 2 years after such death : 
 
 (3.) Subject as aforesaid, the steps to be taken for i:)rociU'iug payment of such 
 debt shall be as follows ; (thai is to say,) every person making a demand 
 as creditor shall deliver to the Board of Trade an account in Avriting in 
 such form us it lerpiires, subscribed with his name, stating the particulars 
 of his demand and the place of his abode, and veritied by liis declaration 
 made before a justice : 
 
 (4.) If before such demand is made any claim to the wages and effects of the 
 deceased made by any person interested therein as his ivddow or child, or 
 \mder a will or under the statutes for the distribution of the effects of 
 intestates, or under any other statute, or at common law, has been 
 allowed, the Board of Trade shall give notice to the creditor of the 
 allowance of siich person's claim, and the creditor shall thereupon have 
 the same rights and remedies against such person as if he or she had 
 received the said wages and effects as the legal personal representative of 
 the deceased : 
 
 (5.) If no claim by any such person has been allow^ed, the Board of Trade shall 
 proceed to mvestigate the creditor's accoimt, and may for that jiurpose 
 require him to prove the same, and to produce all books, accounts, 
 vouchers, and papers relating thereto ; and if by such means the creditor 
 duly satisfies the Board of Trade of the justice of the demand, either in 
 the whole or in part, the same shall be allowed and paid accordingly, so 
 far as the assets in the hands of the Board of Trade wdll extend for that 
 purpose, and such payment shall discharge the Board of Trade from all 
 further liability in respect of the money so paid ; but if such board is not 
 satisfied, or if such books, accounts, vouchers, or papers as aforesaid aru ' 
 not produced, and no sufhcient reason is assigned for not producing] 
 them, the demand sliall be disallowed : 
 
 (6.) In any case wdiatever the Board of Trade may delay the investigation of j 
 any demand made bj- a creditor for the payment of his debt for one year 
 from the time of the first delivery of the demand ; and if in the course of ! 
 that time a claim to the wages and effects of the deceased is made and ' 
 substantiated as herembefore required by any person interested therein 
 as a widow or child, or under a will, or imder the statutes for the dis- i 
 tribution of the effects of intestates, or under any other statute, or at J 
 common law, the Board of Trade may pay and ileli^'er the same to such . 
 person ; and thereupon the creditor shall have the same rights and 
 remedies against such person as if he or she had received the same as the ] 
 legal personal representative of the deceased. 
 
 202. In cases of wages or effects of deceased seamen or apprentices received by i 
 the Board of Trade to which no claim is substantiated within six years after the 
 receipt thereof by such board, it shall be in the absolute discretion of such board, 
 if any subsequent claim is made, either to allow^ or to refuse the same ; and, 
 subject to the provision hereinafter contained, the Board of Trade shall from time 
 to time pay any monies arising liom the unclaimed wages and effects of deceased 
 seamen, wliich in the opinion of such board it is not necessary to retain for the 
 purpose of satisfying claims, into the receipt of H. M.'s Exchequer in such manner ' 
 as the Treasury directs, and such monies shall be carried to and fonn part of the 
 Consolidated Fund of the U. K. 
 
 203. Every j)erson Avho, for the purpose of obtaioing, either for himself or for I 
 another, any money or effects of any deceased seaman or apprentice, forges, assists 
 in forging, or procures to be forged, or fraudulently alters, assists in fraudulently 
 altering, or procures to be fraudulently altered, any document puri^orting to show
 
 17 & 18 viGT. c. 104. 679 
 
 or a.Si^ist in showing a right to such wages or effects, and every person Avho for ami property of 
 the purpose aforesaid makes use of any such forged or altered document as afore- ^^^^f^"'*^'^ ^^'^' 
 said, or who for the purpose aforesaicl gives or makes or procures to be given or 
 made, or assists in giving or making or procuring to be given or made, any false 
 evidence or representation, kno-wing the f^ame to be false, shall he punishable with 
 penal servitude for a term not exceeding 4 [now 5] years, or Avith imprisonment 
 with or without hard labour for any period not exceeding 2 years, or if summarily 
 prosecuted and convicted, by imprisonment, Avith or without hard labour, for any 
 period not exceeding six months. 
 
 204. In the case of seamen invalided or discharged from any of H. M.'s ships. Effects of sea- 
 and sent home in merchant ships, any monies or effects belonging to them Avhich "rom uavyTcf bo 
 are paid, remitted, or delivered to the Board of Trade, or its agents, under the disposed of by 
 provisions hereinbefore contained, shall be paid over and dis])osed of in such •'CLwintant- 
 
 ,1 , 1 Vtt nr; I- i general of nav\ . 
 
 manner as the accountant-general of H. M. s navy directs. 
 
 Lcavinrj Seamen abroad. Lcamm 
 
 Seamen abroad, 
 
 205. Whenever any British ship is transferred or disposed of at any place out of Ou discharge of 
 H. M.'s dominions, and any seamen or apprentice belonging thereto does not in by sale of ship ' 
 the presence of some British consular officer, or if there is no such consular officer or otherwise, 
 there, in the presence of one or more respectalde British merchants residing at the ^iscliar^^e to be 
 place, and not interested in the said ship, signify his consent in Avriting to com- given, alid sea- 
 plete the voyage if continued, and whenever the service of any seaman or appren- "icn to be sent ^ 
 ticc belonging to any British ship terminates at any place out of H. M.'s dominions, of ^wncr. ^''^ 
 the master shall give to each such seaman or apprentice a certificate of discharge 
 in the form sanctioned by the Board of Trade as aforesaid, and in the case of any 
 certificated mate Avhose certificate he has retained, shall return such certificate to 
 him, and shall also, besides paying the wages to which such seaman or apprentice 
 is entitled, either provide him Avith adec^uate employment on board some other 
 British ship bound to the port in H. M.'s dominions at Avhich he Avas originally 
 .sliipped, or to such otlier port in the U. K. as is agreed upon by him, or furnish 
 tlie means of sending him back to such port, or provide him Avith a passage home, 
 or deposit Avitli such consular officer or such merchant or merchants as aforesaid 
 such a sum of money as is by such officer or merchants deemed sufficient to defray 
 the expenses of his subsistence and passage home ; and such consular officer or 
 merchants shall indorse upon the agreement of the ship Avhich the seaman or 
 apprentice is leaving the particulars of such iiayment, proA-ision, or deposit ; and 
 if the master refuses or neglects to comply Avitli the recpiirements of this section, 
 !^uch exjienses as last aforesaid, if defrayed by such consular officer or liy any other 
 person, shall, unless such seaman or apprentice has been guilty of barratry, be a 
 charge upon the ship to Avhich sucli seaman or apprentice lielonged and upon the 
 OAA'ner for the time being thereof, and may be I'ecovered against such OAvuers, Avitli 
 costs, at the suit of the consular officer or other person defraying such expenses, 
 or, in case the same has Ijeen allowed to the consular officer out of the public 
 monies, as a debt due to H. M., either by ordinary process of laAV, or in the 
 manner iu which seamen are hereby enabled to recover Avages ; and such ex- 
 penses, if defrayed by the seaman or apprentice, shall be recoverable as wages due 
 to liim. 
 
 206. If the master or any other person belonging to any British ship Avrongfully l-'oi'cing seamea 
 forces on shore and leaves behind, or other Avise Avilfully and wrongfully leaves ^['^^^^^g^.'^^^^^^ "^i^- 
 behind, in any place, on shore or at sea, in or out of H. M.'s dominions, any sea- 
 man or apprentice belonging to such ship before tlie completion of the A'oyage for 
 
 A\-hich such ]iersou Avas engaged or the return of the ship to the U. K., he shall tor 
 each such offence l)e deemed guilty of a misdemeanor. 
 
 207. If the nu^ster of any British ship does any of the folloAving things ; (that is ^o seamen to be 
 .X ^ ^ ^ o o ' V discharged or 
 '■"''■^V'^ left abroad with- 
 
 (1.) Discharges any seaman or ajiprentice in any place situate iu any British *^'»t ccrtiticaio 
 possession aliroad (except the possession in Aviiich he Avas shipped), AA^ith- funttiouaryi 
 out prcvioubly oljtaiuing the sanction in Avriting indorsed on the agree-
 
 680 M. S. ACT, 1854, TAKT 3, 
 
 inent of some public shipxiiiig master (c.) or other ofticc-r duly appoiuted 
 by the local govermnent in that behalf, or (in the absence of any such 
 functionary) of the chief otficer of customs resident at or near the place 
 where the discharge takes place : 
 (2.) Discharges any seaman or apprentice at any place out of her Majesty's 
 dominions without previously obtaining the sanction so indorsed as 
 aforesaid of the British consular officer there, or (in his absence) of two 
 respectable merchants resident there : 
 (3.) Leaves behind any seaman or apprentice at any place situate in any British 
 possession abroad, on any ground whatever, withoiit previously obtaining 
 a certificate in writing so indorsed as aforesaid from such officer or 
 person as aforesaid, stating the fact and the cause thereof, whether 
 such cause be unfitness or inability to proceed to sea, or desertion or dis- 
 appearance : 
 (4.) Leaves behind any seaman or apprentice at any place out of H. M.'s 
 dominions, on shore or at sea, on any ground whatever, without pre- 
 viously obtaining the certificate indorsed in manner and to the eftect last 
 aforesaid of the British consular officer there, or (in his absence) of 2 
 respectable merchants, if there is any such at or near the place where the 
 ship then is : 
 He shall for each such default be deemed guUty of a misdemeanor ; and the said 
 functionaries shall and the said merchants may examine iirto the grounds of such 
 proposed discharge, or into the allegation of such unfitness, inability, desertion, or 
 disappearance as aforesaid, in a summary way, and may for that purpose, if they 
 tliink fit so to do, administer oaths, and may either grant or refuse such sanction 
 or certificate as appeal's to them to be just. 
 Proof of such 208. Upon the trial of any information, indictment, or other proceeding against 
 
 certificate to ))o any person for discharging or leaving behind any seaman or apprentice, contrary 
 upon the master. ^^ ^-^^^ provisions of this Act, it shall lie upon such person either to produce the 
 sanction or certificate hereby required, or to prove that he had obtained the same 
 previously to having dischai'ged or left behind such seaman or apprentice, or that 
 it Avas impracticable lor him to obtain such sanction or certificate. 
 Wages lo be 209. Every master of any British ship who leaves any seaman or apprentice on 
 
 iiaid wheu shore at any place abroad in or out of H. M.'s dominions, under a certificate of his 
 
 behind ou*^ ^'^^^ imfitness or inability to proceed on the voyage, shall deliver to one of the func- 
 ground of in- tionaries aforesaid or (in the absence of such functionaries) to the merchants by 
 ability. whom such certificate is signed, or, if there be but one respectable merchant 
 
 resident at such place, to him, a full and true account of the wages due to such 
 «eaman or apprentice, such account ■when delivered to a consular officer to lie in 
 duplicate, and shall pay the same either in money or by a bill (h) draAvn upon the 
 owner ; and in the case of every bill so drawn, such fimctionary, merchants or 
 merchant as aforesaid, shall by indorsement certify thereon that the same is 
 drawn foi' money due on account of a seaman's wages, and shall also indorse the 
 amount for which such bill is drawn, with such further particulars in respect of 
 the case as the Board of Trade re(|uires, upon the agreement of the ship ; imd 
 every such master as aforesaid who refuses or neglects to deliver a full account of 
 such wages, and i)ay the amount thereof in money or by bill, as hereinbefore 
 required, shall for every such oftence or default lie liable, in addition to the pay- 
 ment of the wages, to a penalty not exceeding 10?. ; and every such master who 
 delivers a false account of siich wages shall for every such oftence, in addition to 
 the payment of the A\ages, incur a penalty not exceeding £20. 
 SuchTN-ages to 210. Every such payment as last aforesaid, whether by Ijill or in money, shall, 
 be treated as ^^ made in any British possession, be made to the seaman or apprentice himself, 
 Thel^e^tnen, and, if made'^ out of H. JNf.'s dominions, to the consular officer, who shall, if 
 subject to pay- .satisfied with the account, indorse on one of the duplicates thereof a receipt for 
 S^th'ier/s!ib-'^°^*^ the amount paid or bill delivered, and shall return the same to the master ; and 
 Mstenceand the master shall, within 48 hours after his retiu-n to liis port of destination in 
 passage home. ^^^ jj j^^ deliver the same to the sliipping master («) there ; and the consular 
 
 (n) Kow a superintendent of a mercantile (^) See 35 & 20 Vict. c. 63. s. 19. 
 
 marine office ; 25 & 2ti Vict. c. 63, s. If.
 
 17 & 18 VICT. c. 104. 681 
 
 utlicer shall retain the other duplicate oi' the said account, and ^liall, it the seaman 
 or ai)prentice subsequently obtains employment at or otherwise quits the port, 
 deduct out of the sum received by him as aforesaid any expenses which have been 
 incurred by him in respect of the subsistence of the seaman or apprentice under 
 the provisions herein contained, except such as the master or owner of the ship is 
 hereby required to pay, and shall pay the remainder to the seaman or apprentice, 
 and shall also deliver to him an account of the sums so received and expended on 
 his behalf; and shall, if the seaman or aj^prentice dies before his ship quits the 
 port, <leal with the same in the manner hereinafter specified in that Ijehalf, and 
 shall, if the seaman or apprentice is sent home at the public expense under the 
 provisions herein contained, account for the amount received to the Board of 
 Trade ; and such amount shall, after deducting any expenses which have been 
 duly incui'red in respect of such seaman or apprentice, except such as the master 
 or owner of the ship is hereljy required to pay, be dealt with as wages to which he 
 is entitled, and shall be paid accordingly. 
 
 211. The governors, consular officers, and other officers of her Majesty in foreign DLstrcssed sea- 
 countries shall, and in ijlaces where there are no such governors or officers, any "k™^^?""^,, i,n 
 two resident i>ritish merchants may provide for the subsistence of all seamen or relieved and 
 apprentices, being subjects of H. M., who have been shipwrecked, discharged, or jicnthomcat 
 left behind at any place abroad, whether fi-om any ship employed in the merchant cxpeQsc(c). 
 service or from any of H. M.'s ships, or who have been engaged by any person 
 
 acting either as principal or agent to serve in any ship belonging to any foreign 
 power or to the subject of any foreign state, and who ai-e in distress at any place 
 abroad, until such time as they are able to pro^•ide them with a passage home, and 
 for that purpose shall cause such seamen or apprentices to be put on board some 
 ship belonging to any subject of H. M. bound to any port of the U. K., or to the 
 British possession to which they belong (as the case requires), which is in Avant of 
 men to make up its complement, and in default of any such ship shall proA'ide 
 them with a passage home as soon as possible in some ship belonging to a subject 
 of H. M. so bound as aforesaid, and shall indorse on the agreement of any ship on 
 board of wliich any seaman or apprentice is so taken or sent the name of every 
 jtcrson so sent on board thereof, with such particulars concerning the case as the 
 Board of Trade re(|uires, and shall be allowed for the subsistence of any such 
 seaman or apprentice such sum ]jer diem as the Board of Trade from time to time 
 appoints ; and the amount due in resjDect of such allowance shall l)e jxiid out of 
 any monies applical)le to the relief of distressed British seamen, and granted by 
 parliament for the purpose, on the production of the bills of the disbursements, 
 with the proper vouchers. 
 
 212. The master of every British ship so bound as aforesaid shall receive and ?.^'.v -T^^u^ , , 
 atl'ord a passage and subsistence to all seamen or apprentices Avhom he is re(£uired compViicd b> 
 to take on board his ship under the provisions hereiul leforc contained, not exceed- take ihcm(c). 
 ing one for every fifty tons burden, ami shall during the ixxssage provide every 
 
 such seaman or aj^prentice with a proper berth or sleeping-place efiectually prcj- 
 tected against sea and Aveather; and on the production of a certificate signed by 
 any governor, consular officer, or merchants, by Avhose directions any such seaman 
 or apprentice was received on board, specifying the number and names of such 
 seamen or apprentices, and the time "when each of them respectively was received 
 on board, and on a declaration made by such person Ijefore a justice, and verified by 
 the registrar-general of seamen (rf), stating the number of daj's during which each 
 seaman or apprentice received subsistence and was provided for as aforesaid <in 
 board his ship, and stating, also the number of men and boj's forming the comple- 
 ment of his crew, and the number of seamen and apprentices employed on board 
 his ship during such time, and every variation (if any) of such number, such 
 person shall be entitled to be paid out of the said monies applicable to the relief 
 of distressed British seamen, in respect of the subsistence and passage of every 
 seaman or apprentice so conveyed, subsisted, and jirovided for by him exceeding 
 the number (if any) Avanted to make up the complement of his creAV, such sum 
 2}er diem as the Board of Trade from time to time appoints ; and if any person 
 
 (f) See 18 & 19 "Vict. c. 01, s. IG, post; see 25 & the penalty for leaving certain seamen in distress 
 
 2G Vict. c. 63, s. 22, as to the claims of seamen to in this country, see 17 & 18 Vict. c. 120, s. 16. 
 be relieved under this section being subject to ((/) Now registrar-general of shipping and 
 
 regulations made by the Board of Trade. As to seamen ; see 30 & 36 Vict. c. 73, s. 4, post.
 
 682 
 
 M. S. AOT, 1854, PAET o. 
 
 Power to sue 
 for the amouut 
 advanced for 
 the relief of 
 seamen left 
 abroad (o) . 
 
 luiving charge of any such ship iails or refuses to receive on hoard his ship, or to 
 give a pas>;agc lioiue, or subsistence to, or to provide for any such seaman or 
 apprentice as aforesaid, contrary to the provisions of this Act, he shall incur a 
 penalty not exceeding j£100 for each seaman or apprentice with respect to whom 
 he makes such default or refusal. 
 
 213. If any seanum or apprentice lielonging to any British ship is tlischarged or 
 left behind at any jjlace out of the U. K., without full compliance on the part of 
 the master with all the provisions in that behalf in this Act contained, and 
 becomes distressed and is relieved under the provisions of this Act, or if any sub- 
 ject of H. M., after having been engaged by any person (whether acting as principal 
 or agent) to serve in any ship belonging to any foreign power, or to the suljject of 
 any foreign power, becomes distressed and is relieved as aforesaid, the wages (if 
 any) due to such seaman or apprentice, and all expenses incurred foi- his sub- 
 sistence, necessary clothing, conveyance home, and burial, in case he should die 
 abroad before reaching home, shall be a chaige ujion tlic ^'hip, whether British or 
 foreign, to which he so belonged as aforesaid ; and the Board of Trade may in the 
 name of H. >\I. (besides siung for any penalties which may have been incuiTed) 
 sue for and recover the said ^^'ages and expenses, with costs, either from the master 
 of siicli ship as aforesaid, or from the person who is owner thereof for the time 
 being, or, in the case of such engagement as aforesaid for service in a foreign ship, , 
 from such master or o'\\'ner, or from the person by whom such engagement was sol 
 made as aforesaid; and such sums shall be recoverable either in the same manner' 
 as other debts due to Her Majesty, or in the same manner and l)y the same form 
 and process in Avhich wages due to the seaman would be recoverable by him ; and 
 in uny proceedings for that purpose production of the account (if any) to be 
 furnished as hereinbefore is provided in such cases, together with proof of pay- 
 ment by the Board of Trade, or by the paymaster-general, of the charges inciu'red 
 on accoiuit of any such seaman, apprentice, or other person, shall be sufHcient 
 evidence that he was relieved, coii%"eyed home, or buried (as the case may be) at 
 H. M.'s expense. 
 
 Volniitcrhifi 
 into the SuL'ij, 
 
 Seamen allowed 
 t" leave their 
 t^hips in order 
 to enter the 
 miyj. 
 
 Clothes to be 
 delivered at 
 riucc. Wage< to 
 be given to the 
 (>iieeu's offleer 
 <iii account of 
 the seamen. 
 
 Voluntcerinrj into the Nav}j{h). 
 
 214. Any seaman may leave his ship for the purpose of forthwith entering into 
 the naval service of H. M., antl such leaving his ship shall not be deemed a deser- 
 tion therefr(jm, and shall not render liim liable to any punishment or forfeiture 
 whateA'er ; and all stipulations introduced into any agreement whereby any sea- 
 man is declared to incur an}' forfeiture or he exposed to any loss in case he enters 
 into H. ]\I.'s naval service shall be Aoid, and every master or owner who causes 
 anv such stipidation to be so introduced shall incur a penalty not exceed- 
 ing i-20. 
 
 215. "Whenever any seanum, without ha^dng previously committed any act 
 amounting to and treated by the master as desertion, leaves his ship in order to 
 enter into the naval service of H, M. and is received into such service, the 
 :uaster shall deliver to him his clothes and effects on board such ship, and shall 
 pay the proportionate amount of his wages down to the time of such entry, subject 
 to all just deductions, as follows ; (that is to say,) the master of the said ship shall 
 pay the same to the ofticer authorized to receive such seaman into H. M.'s service, 
 either in money or b}' bill drawji upon the owner and payable at sight to the 
 order of the accountant-general of the navy; and the receipt of such olhcer shall 
 be a discharge for the money or bill so gdven ; and such bill shall be exempt from 
 stamp dut}' ; and if such wages are paid in money, such money shall be credited 
 in the miister book of the ship to the ticcount of the said seaman ; and if sticli 
 wages are paid by bill, such bill ^iliall be noted in the said nuister book and shall 
 be sent to the said accountant-general, who shall jjresent the same or cause the 
 same to be presented for payment, and shall creiUt the produce thereof to the 
 account of the said seaman ; and such money or produce (as the case may be) shall 
 jiot l>e paid to the said seauian until the time at which he would have been 
 entitled to receive the same if he had remained in the sei-vice f)f the ship which he 
 
 (.") .Sec aittC: 11. GSl, note ('■). 
 
 (ii) As to the application of this piirt of the 
 Act, see s. 100, aiiU; p. 657.
 
 17 & 18 VICT. c. 104. 683 
 
 had so quilted as aforesaid ; and if any sucli bill is not duly paid when presented, 
 the said accountant-general or the seaman on whose hehalf the same is given may 
 sue thereon or may recover tlie wages due by all or any of the means Ijy Avhich 
 wages due to merchant seamen arc recoverable ; and if upon any seaman lea\ing 
 his ship in the manner and for the purpose aforesaid, the master fails to deliver 
 his clothes and effects or to pay his wages as hereinbefore required, he shall, in 
 addition to his lialnUty to pay and deliver the same, incur a penalty not exceeding 
 i>20 ; provided that no otticer who receives any such bill as aforesaid shall Ije 
 subject to any liability in respect thereof, except for the safe custody thereof until 
 sent to the said accountant-general as aforesaid. 
 
 216. If upon any seaman leaving his ship for the purpose of entering the naval Repayment to 
 service of H. M., the owner or master of such ship shows to the satisfaction of the li'jy.fjJee p;,i^i 
 Admiral that he has paid or properly rendered himself liable to pay an advance of and uot duly 
 A\"ages to or on account of such seaman, and that such seaman has not at the time c^iu^i^l- 
 
 of quitting his ship duly earned such advance by service tlierein, and, in the case 
 of sucIi lialiility as aforesaid, if such owner or master actually satisfies the same, 
 it shall be lawful for the Admiralty to j)ay to such owner or master so niucli 
 iif such advance as has not been duly earned, and to deduct the sum so paid 
 from the wages of the seaman earned or to be earned in the naval ser\icc 
 of H. M. 
 
 217. If, in consequence of any seaman so leaving liis ship without the consent if new seamen 
 of the master' or owTier thereof, it becomes necessary for the safety and proj^er ?''° '^"^''^'''1 
 navigation of the said ship to engage a substitute or substitutes, and if the wages original seanjcn, 
 or other remuneration paid to such .'substitute or sulKtitutes for subsequent service the owicr may 
 exceed tlie wages or remuneration which woidd have been payalile to the said payment onmy 
 seaman under his agreement for similar service, the master or o'waier of the said extra expense he 
 ship may ai:)ply to the registrar of the High Court of Admiralty in England for a ^''"* '^'^'^^ i'"'' ^'^• 
 certificate authorizing the repaymeitt of such excess ; and such application shall 
 
 be in such form, and shall be accompamed by stich documents, and by such state- 
 ments, whether on oath or otherA\"ise, as the judge of the said coitrt from time to 
 time dii'ects. 
 
 218. The said registrar shall, upon receiving any stich application as aforesaid, Application lion- 
 give notice thereof in writing, and of the sum claimed, to the secretary to tlie a'ud^amoimt of"' 
 Admiralty, and shall proceed to examine the said application, and may call upon repayment how 
 the registrar-general of seaman (e) to produce any papers in his possession relating t;\be asccr- 
 thereto, and may call for fttrther evidence ; and if the whole of the claim appears 
 
 to him to be just, he shall give a certificate accordingly ; Intt if he considers that 
 such claim or any part thereof is not just, he shall give notice of such his opinion 
 in writing under liis hand to the person making the said application or his 
 attorney or agent; and if within 16 days from the giving of such notice such 
 person does not leave or caitse to be left at the office of tlie registrar of the said 
 court a written notice demanding that the said application shall be referred to the 
 judge of the saitl coiu-t, then the said registrar sliall finally decide thereon, and 
 certify accordingly ; bttt if such notice is left as aforesaid, then tlie said aiiplication 
 shall stand referred to the said judge in his chambers, and his decision thereon 
 shall be final, and the said registrar shall certify the same accordingly ; and the 
 said registrar and judge respectively shall in every proceeding under this Act have 
 full power to administer oaths, and to exercise all the ordinary powers of the court, 
 as in any other proceeding within its jurisdiction ; and the said registrar or judge 
 (as the case may be) may, if he thinks fit, allow for the costs of any proceeding 
 under this Act any sum not exceeding 51. for each seaman so quitting his ship 
 as aforesaid; and such sum shall be added to the sum allowed, and shall be 
 certified by the said registrar accordingly. 
 
 219. Every certificate so given shall be sent by post or otlierwise to the person Accountant- 
 making the application, his attorney or agent, and a copy thereof shall be sent to general to pay 
 the accountant-general of the navy ; and such accountant-general sliall upon de- asccrtaiuwl. 
 livery to him of the said original certificate, together with a receipt in writing 
 purpoi-ting to be a receipt from the master or owner making the application, pay 
 
 to the person delivering the same out of the monies applicable to the naval service 
 of H. M., and granted by parliament for the purpose, the iimount mentioned in 
 
 ('•) Now registrar-gcuerul of JsLippiiig and seamen ; see 35 & 3ti Vict. c. 73, s. 4, post.
 
 681 
 
 M. S. ACT, 1854, PART 3, 
 
 Penalty for 
 forgeryand false 
 representations 
 ill support of 
 such applica- 
 tions. 
 
 «ucli certificate ; ami such certificate and receipt s]\all alisoliitely tliscliarge tlie said 
 accountaut-guuoral and H. ]\I. Innii all liability in respect of the monies so paid 
 or of the said a^jplication. 
 
 220. Every person who, in making or supporting any such application as afore- 
 said to the registrar of the High Court of Admiralty, forges, assists in forging, or 
 procures to be forged, or fraudulently alters, assists in fraudulently altering, or 
 procures to be fraudulently altered, any document, and every person who in 
 juaking or supporting any such application presents or makes use of any such 
 forged or altered document, or who in making or supporting any such application 
 makes or gives, or assists in making or giving, or procures to be made or given, 
 any false e\adencc or representation, knowing the same to be false, shall be deemed 
 guilty of a misdemeanor. 
 
 Provisio)!.", 
 
 Health, and 
 
 Accominodatioii. 
 
 Survey of pro. 
 visions and water 
 on complaiul 
 made. 
 
 Korfciturc for 
 frivolous com- 
 pUiiut. 
 
 Allowance for 
 short or bad pro- 
 visions. 
 
 Provisions, Health, ami Accommodation. 
 
 221. Any three or more of the crew of any British shij) may complain to any 
 otficer in command of any of H.M.'s ships, or any British consular officer, or any 
 sliipping master ((f), or any chief officer of customs, that the pro\isions or water 
 for the use of the crew are at any time of bad quality, unfit for use, or deficient iu, 
 quantity ; and such otficer may thereupon examine the said provisions or Avater,j 
 or cause tliem to be examined ; and if on examination such provisions or Avater 
 are found to be of bad quality and unfit for use, or to be deficient in quantity, the 
 person making such examination shall signify the same in writing to the master 
 of the ship ; and if such master does not thereupon provide other proper provisions 
 or Avater in lieu of any so signified to be of a bad quality and mifit for use, or does 
 not prociu'e the requisite quantity of any so signified to be insutficient in (piantity, 
 or uses any provisions or water which had been so signified as aforesaid to be of a 
 bad (quality and unfit for use, he shall in every such case incur a penalty not 
 exceeiUug £20 ; and upon every such examination as aforesaid the officers making 
 or directing the same, shall enter a statement of tlie result of the examination in 
 the official log, and shall send a report tliereof to tlie Board of Trade, and such 
 I'eport if produced out of the custody of such boai'd, or its olticers, shall be received 
 in e^ ideuce in any legal proceeding. 
 
 222. If the otficer to whom any such complaint as last aforesaid is made certifies 
 in such statement as aforesaid that there was no re;xsonable ground for such 
 complaint, each of the parties so complaining shall be liable to forfeit to the 
 owner out of his wages a simi not exceeding one week's Avages. 
 
 223. In the following cases, (that is to say,) 
 
 (1.) If during a voyage the allowance of any of the proA"isions Avhichany seaman 
 has by his agreement stipulated for is reduced (except in accordance 
 Avith any regulations for reduction b}- Avay of punishment contained in 
 the agreement, and. also excej^t for any time during Avhieh such seaman 
 Avilfully and Avitliout sutiicieiit cause refuses or neglects to perform his 
 duty, or is laA\-fully under confinement for misconduct either on Ijotud or 
 on shore) : 
 
 (2.) If it is shoAAii that any of such provisions arc or haA'e dming the A-oyagc 
 been bad in quality and unfit for use : 
 
 The setmian sliall receive by Avay of compensation for such reduction or bad 
 quality, according to the time of its continuance, the folloAving sums to be paid to 
 him iu addition to ami to be recoverable as Avages ; (that is to say,) 
 
 (1.) If his alloAvance is reduced l)y any quantity not exceeding one-third of the 
 <j[uantity specified in the agi'eement, a sum not exceeding foui'pence a 
 day : 
 
 (2.) If liis alloAvancc is reduced by more than one-third of such quantity, 
 eightpence a day : 
 
 (3.) In respect of such bad quality as aforesaid, a sum not exceeding one 
 shilling a day ; 
 But if it is shown to the satisfaction of the court before Avhich the case is tried, 
 
 (u) yow a supci'inteiideul of a mcrcantilv luariue ol&cc, 25 & 26 Victi Ci 6S, s. 15.
 
 17 & 18 VTOT. c. 104. 685 
 
 that any provisions the allowance of which has been reduced could not be procured 
 or supplied in proper quantities, and that proper and equivalent substitutes were 
 supplied in lieu thereof, the court shall take such circumstances into consideration, 
 and shall modify or refuse compensation as the justice of the case may recpiire. 
 
 224. [Repealed by 30 & 31 Vict. c. 124 s. 3 ; see s. 4: joost, as to medicine, lime 
 juice, &c., being kept on lioard ship,] 
 
 225. Every master shall kee]^ on board proper weights and measures for the Masters to keep 
 purpose of determining the quantities of the several provisions and articles served ^^^e!°Ju^^g"^ 
 out, and shall allow the same to be used at the time of serving out such provisions board. 
 
 and articles in the presence of a witness, whenever any dispute arises about 
 such quantities, and in defaiilt shall for every offence inciu' a penalty not 
 exceeding £10. 
 
 226. Any local marine board may, upon being required by the Board of Trade Board of Trade 
 so to do, appoint and remove a medical inspector of ships for the port, and may ""'^ 'p^^i b()ards 
 fix his remuneration, such remuneration to be subject to the control of the Board Inspectors of 
 
 of Trade ; and at ports where there are no local marine boards the Board of medicines, who 
 Trade may appoint and remove such inspectors, and fix their remuneration ; ghfps'areVr"-'^ 
 and it shall be the duty of such insjiectors to inspect the medicines, medical periy provided, 
 stores, lime or lemon juice, or other articles, sugar and vinegar, i-equired to be 
 kept on board any such ships as aforesaid ; and such inspection, if made at places 
 where there are local marine boards, shall be made under their direction, and also 
 in any special cases under the direction of the Board of Trade ; and if made at 
 places where there are no local marine Ijoards, shall be made under the direction 
 of the Board of Trade ; and such medical inspectors shall for the purposes of sitcli 
 inspection have the same powers as the inspectors appointed by the Board of 
 Trade under the first part of this Act ; but every such inspector, if required by 
 timely notice in Avriting from the master, owner, or consignee, shall make his 
 inspection three days at least before the ship proceeds to sea, and if the result of 
 the iu.spection is satisfactory shall not again make inspection before the com- 
 mencement of the voyage, unless he has reason to suspect that some of the 
 articles inspected have been subsequently removed, injured, or destroyed ; 
 and whenever any such medical inspector is of opinion that in any ship hereby 
 required to carry such articles as aforesaid the same or any of them are deficient 
 in quantity or quality, or are placed in impropei- vessels, he shall signify the same 
 in writing to the chief officer of customs of the port where such ship is lying, 
 and also to the master, owner, or consignee thereof, and thereupon the master of 
 such ship, before proceeding to sea, shall produce to such chief officer of customs 
 a certificate under the hancl of such medical inspector or of some other medical 
 inspector, to the eftect that such deficiency has been supplied or remedied, or that 
 such improjier vessels have been replaced ])y proper vessels, as the case may 
 requu'e ; and such chief officer of customs shall iiot grant a clearance for such 
 ship A\'ithout the production of such certificate, and if such ship attempts to go to 
 sea without a clearance, may detain her until such certificate is produced ; and if 
 such ship proceeds to sea without the production of such certificate, the owner, 
 master, or consignee thereof shall incur a penalty not exceeding J>'20. 
 
 227. [Repealed by 30 & 31 Vict, c 124, s. 3 ; see sects. 5 & 6 of this act, jjo.s^, as 
 to selling bad medicines, &c.] 
 
 228. The following rules shall be observed with respect to expenses attendant Exiiensc of 
 
 on illness and death ; (that is to say,) medical atteud- 
 
 (1.) If the master or any seaman or apprentice receives any hurt or injury (c) in si"tenM ta'case 
 the ser-vice of the ship to Avhich he belongs, the expense of j^roviding the of illness, and of 
 necessary surgical and medical achdce, with attendance and medicines, |j"™' ^ow to°be 
 and of his subsistence until he is cured, or dies, or is brought back to defrayed (b). 
 some port in the U. K., if shipped in the U. K., or if shipped in some 
 British jjossession to some port in such possession, and of his conveyance 
 to such port, and the expense (if any) of his burial, shall be defrayed by 
 the OAvner of such ship, without any deduction on that account from the 
 wages of such master, seaman, or apprentice : 
 
 (?)) See 30 & 31 Vict. c. 124. s. 7. pout, as to feiture of wages, &c., of seaman where illness 
 seaman'.s expenses in case of illness through caused by his default; and see s. 10. 
 neglect of owner ; and see s. 8, 2}ost, as to for- (r) See Sea-etary of Board of Trade v. Sund- 
 
 holm, 41 L. T. 169.
 
 686 
 
 M. N. ACT, 1854, l'AT?T 3, 
 
 Expenses, if paid 
 by consul, to be 
 recovprablp 
 from owner. 
 
 Certain ships to 
 Ciin-y medical 
 practitioners. 
 
 (2.) If the master or any .seaman or apprentice is on account of any ilbiess 
 temporarily removed from liis ship for the purpose of preventing infection, 
 or otlierA\-ise for the convenience of tlie ship, and subsequently returns to 
 liis duty, the expense of such removal, and of providing the nectssary 
 advice Avith attendance and medicines, and of lii.s subsistence whilst away 
 from the .shi]i, shall be defrayed in like manner : 
 
 (3.) The expense of all medicines and surgical or medical advice and attendance 
 given to any master, seaman, or apprentice whilst on board liis ship shall 
 be defrayed in like manner : 
 
 (4.) In all other cases any reasonable expenses duly incurred by the owner for 
 any seaman in respect of illness, and also any reasonable expenses duly 
 incurred by the owner in respect of the Ijurial of any seaman or 
 apprentice who dies whilst on .ser\dce, shall, if duly proved, be deducted 
 from the wages of such seaman or apprentice. 
 
 229. If any such expenses in respect of the illness, injury, or hurt of any seaman 
 or apprentice, as are to be borne by the owner, are paid by any consular othcer or 
 other person on behalf of H. M., or if any other expenses in respect of the illness, 
 injury, or hurt of any seaman or apprentice whose wages are not accounted for 
 to such officer under the jirovisions herein-before contained in that behalf are so 
 paid, such expenses shall be repaid to such officer or other jierson Ijy the master 
 of the .ship, and if not so repaid, the amount thereof, with co.sts, shall be a 
 charge xtpon the ship, and be recoverable from the said master or from the 
 owner of the ship for the time being as a debt due to H. M., and shall be 
 recoverable either by ordinarj^ process of law or in the manner in which seamen 
 are hereby enabletl to recover wages ; and in any proceeding for the recovery 
 thereof the production of a certificate of the facts, signed by such officer or other 
 person, together with such vouchers (if any) as the case reci[uires, .shall be sufficient 
 proof that the said expenses Avere duly paid by such consular officer or other person 
 as aforesaid. 
 
 230. Every foreign-going ship having one hundred persons or upwards on board, 
 .shall carry on board as part of her complement some person duly authorized by 
 law to practise as phy.sician, surgeon, or apothecary ; and in default the owner 
 shall for every A'oyage of any such ship made without such medical practitioner 
 incur a penalty not exceeding 100/. : Provided that notliing herein contained shall 
 in anyAvise aft'ect any proAdsion contained in the " Passengers' Act, 1852 (a)," con- 
 cerning the carriage of medical jiractitioners by the class of sliips therein named 
 imssenger slii]:)S, nor shall any such passenger ship, if not thereby recjuired to carry 
 a medical practitioner, be hereby required to do so. 
 
 231. [Picpealed by 30 & 31 Vict. c. 124, s. 3 ; see sect. 9, i^ost, as to space to be 
 appropriated to seamen ; 31 <& 32 Vict. c. 129, s. '3,2Jost-] 
 
 Poiecr of 
 
 malcirui Com- 
 
 jilaint. 
 
 Seamen to bo 
 allowed to go 
 ashore to make 
 complaint to a 
 justice. 
 
 Power of making Complaint. 
 
 232. If any seaman or apprentice whilst on board any shij) states to the master 
 that he desires to make complaint to a justice of the peace, or consular officer, or 
 naA-al oflBcer in command of any of H.M.'s ships, against the master or any of the 
 creAv, the said master shall, if the ship is then at a place where there is a justice 
 or any such officer as aforesaid, so soon as the service of the ship will permit, and 
 if the'^ ship is not then at such a place, so soon after her first arrival at such a place 
 as the sei'Adce of the ship will permit, alloAV such seaman or apprentice to go ashore, 
 or send him ashore in proper custodj^, so that he may be enabled to make such 
 complaint, and shfdl, in default, incur a penalty not exceeding ,£10. 
 
 rrotection of 
 Heamcii from 
 Imposition. 
 
 Sale of and 
 charge upon 
 wages to be 
 invalid 
 
 Protection of Seamen from Imposition. 
 
 233. No wages due or accruing to any seaman or apprentice shall be subject to 
 attachment or aiTestment from any court ; and every payment of wages to a 
 seaman or apprentice shall be valid in law, notA^dthstanding any preAaous sale or 
 
 {a) Sec Passengers Act, 1855, 18 & 19 Vict, c, 119, post.
 
 17 & 18 VTOT. ('. 104. G87 
 
 assignment of sncli wagCf*, or of any atlacliment, incumbrance, or arrestment 
 tliereon ; and no assignment or sale of sucli wages or of salvage made prior to the 
 accruing thereof shall bind the party making the same ; and no power of attorney 
 or authority for the receipt of any such wages or salvage shall be iii'evocable. xo debt cxceed- 
 
 234. No debt exceeding in amount 55., incurred by any seaman after he has ins ss; recover- 
 engaged to serve, shall l)o recovei'able until the service agreed for is concluded. voyage. '"^' ° 
 
 235. If any person demands or receives from any seaman or apprentice to the Penafty for 
 sea service jDayment in resj^ect of his board or lodging in the house of such person ]o(igfn<t"i"ouso^ 
 for a longer period than such seaman or apprentice has actually resided or boarded keepers. 
 therein, he shall incur a penalty not exceeding JIO. 
 
 236. If any person receives or takes into his possession or under his control any Penalty for 
 monies, documents, or effects of any seaman or apprentice to the sea service, and n^eu;^ effects' 
 does not return the same, or ]iay the value thereof, when required by such seaman 
 
 or apprentice, subject to such deduction as may be justly due to him from such 
 seaman or apprentice in respect of board or lodging or otherwise, or absconds 
 therewith, he shall incur a penalty not exceeding i;iO ; and any two justices may, 
 Ijesides inflicting stich penalty, by summary order direct the amount or value of 
 such monies, documents, or effects, subject to such deduction as aforesaid, to be 
 forthwith paid to such seaman or apprentice. 
 
 237. Every person wlio, not being in H.M.'s service, and not being duly persons not to 
 authorized by law for the purpose, goes on board any sliip about (c) to arrive at so onboard 
 tlie place of her destination, before her actual arrival in dock or at the place of ^vJivai of ship' 
 lier discharge, without the permission of the master, shall for every such offence without per- 
 incur a penalty not exceeding J20 ; and the master or person in charge of such mission (U). 
 ship may take any such person so going on board as aforesaid into custody, and 
 
 deliver him up forthwith to any constable or peace ofhcer, to be by him taken 
 before a justice or justices, or the sheriff' of the county in Scotland, and to be dealt 
 with according to the provisions of this Act. 
 
 238. If, within 24 hours after the arrival of any ship at any port in the U. K., Penalty for soli 
 any person then being on board such sliip solicits any seaman to become a lodger citations by 
 
 at the house of any person letting lodgings for hire, or takes out of such ship any keepers." '""^^ 
 effects of any seaman, except under his personal direction and with the permission 
 of the master, he shall for every such offence incur a penalty not exceeding ^'5. 
 
 Discipline. Di.idpline. 
 
 239. Any master of or any seaman or apprentice belonging to any British ship JMiscoudnct 
 who by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, c'ljiangerinff ^ 
 does any act tending to the imnrediate loss, destruction, or serious damage of such iimb?i^m'is^.°'^^' 
 ship, or tending innnediately to endanger the life or limb of any person belonging demeanor. 
 
 to or on board of such ship, or who by wilful breach of duty, or by neglect of 
 duty, or by reason of drunkenness, refuses or omits to do any lawful act proper 
 and requisite to be done l)y him for preserving such sliip from immediate loss, 
 destruction, or serious damage, or for preserving any person belonging to or on 
 board of such ship from immediate danger to life or limb, shall for every such 
 offence be deemed guilty of a misdemeanor. 
 
 240. Any court having Admiralty jurisdiction in any of her Majesty's domi- Power of 
 nions may, upon apj)lication by the owner (d) of any ship being witlrin the Admiralty 
 
 (5) See 43 & 44 Vict. c. IG. not actually arrived at the place of her discharge, 
 (c) A ship whose port of destination was B., yet that she had actually arrived in dock within 
 arrived within the limits of the port, and passed the meaning of the Act, and that the respondent 
 about 7 I'.M. throusli the dock gates into a basin, was therefore not liable to the penalties imposed 
 from which she purposed to pass through other by the section. "Actual arrival in dock," in sec- 
 gates and so into inner docks, to discharge her tion 237 of the M. S. Act, 1864, is not to be limited 
 cargo at a quay in one of the nuier docks. Ou by reading the words as if equivalent to final 
 her arrival in the basin, while she was being arriv,al in the dock where the ship is to discharge 
 moored there for the night, the respondent, an her cargo: Attwnod v. Case, 45 L. J. JI. C. 20 
 unauthorized person, came on board of her : L. R. 1 Q. B. D. 137. 
 
 Held, that although the ship was still about to (d) Sec Brenau v. Preston, 2 De 6. M.& G. 813. 
 
 arrive at the place of her destination, and had
 
 088 
 
 M. S. ACT, 1854, PAI^T 3, 
 
 f'oui'ts to 
 remove master. 
 
 Power to in- 
 vestigate cases 
 of alleged 
 i iiftimpetency 
 ami niiscon-' 
 tliici (/)). 
 
 Board of 
 Trade may 
 eancc'I or 
 suspend certi- 
 ficates in ccrtai 
 cases (f). 
 
 jurisdiction of such court, or by the part owner or consignee, or by the agent of 
 tlie owner, or by any certificated mate, or by one-third or more of the crew of such 
 ship, and upon "proof on oath to the satisfaction of such court that the removal of 
 the master of such ship is necessary {a}, remove him accordingly ; and may also, 
 with the consent of the o^\•ner or his agent, or the consignee of the ship, or if 
 there is no owner or agent of the owner or consignee of the ship within the juris- 
 diction of tlie court, then without such consent appoint a new master in his stead ; 
 and may also make such order, and may require sttch security in respect of costs 
 in the iiiatter as it thinks lit. 
 
 241. If the Board of Trade or any local marine board has reason to believe that 
 any master or mate is from incompetency or misconduct unfit to discharge his 
 duties, the Board of Trade may either institute an investigation or may direct the 
 local marine board at or nearest to the place at Avhich it may be convenient for 
 the parties and witnesses to attend to institute the same, and thereupon such 
 jiersons as the Board of Trade may appoint for the purpose, or, as the case may 
 be, the local marine lioard, shall, with the assistance of a local stipendiary magis- 
 trate (if any), and if there is no sucli, magistrate of a competent legal assistant to 
 be appointed l\y the Board of Trade, conduct the investigation, and may summon 
 the master or mate to appear, and shall give him full opportunity of making a 
 defence either in person or otherwise, and shall for the purpose of such investiga- 
 tion have all tlie powers given by the first part of this Act to inspectors appointed 
 by the Board of Trade, and may make such order with respect to the costs of 
 such investigation as they may deem just ; and shall on the conclusion of the 
 investigation make a report upon the case to the Board of Trade ; and in cases 
 where there is no local marine board before -which the parties and Avitnesses can 
 conveniently attend, or where such local marine board is unwilling to institute 
 the investigation, the Board of Trade may direct the same to be instituted before 
 two justices or a stipendiary magistrate ; antl thereupon such investigation shall 
 be conducted, and the results thereof reported, in the same manner and with the 
 same powers in and with which fonnal investigations into wrecks and casualties 
 are directed to be conducted, and the results thereof reported, under the pro\-i- 
 sions contained in the eighth part of this Act, save only that, if the Board of 
 Trade so directs, the person bringing the charge of incompetency or misconduct to 
 the notice of the Board of Trade shall be deemed to be the party having the con- 
 duct of the case. 
 
 242. The Board of Trade may suspend or cancel the certificate (whether of com- 
 petencv or service) of anv master or mate in the following cases ; (that is to 
 say,) 
 
 (1.) If upon any investigation made in pursuance of the last preceding section, 
 he is reported to be incompetent, or to have been guilty of any gross act 
 of misconduct, drunkenness, or tyranny : 
 
 (2.) If upon any investigation conducted uncler the provisions contained in the 
 eighth part of this Act, or upon any investigation made by a naval court 
 constituted as hereinafter mentioned, it is reported that the loss or aban- 
 donment of or serious damage to any ship or loss of life has been 
 caused (d) by his wrongful act or default : 
 
 (3.) If he is superseded by the order of any Admii-alty Court or of any naval 
 court constituted as hereinafter mentioned : 
 
 (4.) If he is shoA\Ti to have been convicted of any offence : 
 
 (5.) If upon any investigation made by any court or tribunal authorized or 
 hereafter to be authorized by the legislative authority in any British 
 possession to make inquiry into charges of incomijetency or misconduct 
 on the part of masters or mates of ships, or as to shipwTecks or other 
 casualties aft'ecting ships, a report is made by such coiu't or tribunal to 
 the effect that he has been guilty of any gross act of misconduct, drunken- 
 
 Co) See the Boiialint. 32 L. J. Ad. 105. where it 
 was held that if a master attempted to defraud 
 the owners he misht tie removed under this 
 section. See the Fmnccs,2 Dods. 420. The power 
 of the court under this section is not limited to 
 the class of cases enumenUed in sect. 239, 
 
 (b) As to investigating conduct of certificated 
 engineer, see 2.5 & 26 Vict. c. 63. s. 11. 2:iOKt. 
 (f) See 25 & 26 Vict. c. 63. ss. 23. 24, post. 
 ((/) The Arifjona, 49 L. J. Ad. 64.
 
 17 & 18 VTOT. r. 104. 689 
 
 uess, ov t3'rfiniiy, or that tlie loss or abandonment of or serious damage to 
 
 any ship or loss of life has been caused by his wrongful act or default, 
 
 and such report is confirmed by the governor or person administering the 
 
 government of such possession : 
 
 And every master or mate whose certificate is cancelled or suspended sliall deliver 
 
 it to the Board of Trade, or as it directs, and in default shall for each offence incur 
 
 a penalty not exceeding £50 ; and the Board of Trade may at any subsequent 
 
 time grant to any person whose certificate has been cancelled a new certificate of 
 
 the same or of any lower grade. 
 
 243. "\\Tienever any seaman who has been la^vfully engaged or any apprentice to Offences of 
 
 the sea ser\ace commits any of the foUowmg offences he shall be liable to be ^?'"!JP'l?'^* 
 • 1 1 •! p 11 • /.I . • , ^\ apprentices, 
 
 punished summarily as follows ; (that is to say,) and their 
 
 (1.) For desertion he shall be liable [to imprisonment for any period not exceed- punishments 
 
 ing 12 weeks, with or without hard labour, and also] (/) to forfeit all or Desertion (c) : 
 
 any part of the clothes and effects he leaves on board, and all or any part 
 
 of the wages or emoluments which he has then earned, and also, if such 
 
 desertion takes place abroad, at the discretion of the court, to forfeit all 
 
 or any part of the wages or emoluments he may earn in any other ship 
 
 in which he may be employed until his next return to the IJ. K., and to 
 
 satisfy any excess of wages paid by the master or owner of the ship from 
 
 which he deserts to any substitute engaged in his place at a higher rate 
 
 of wages than the rate stipulated to be paid to him : 
 
 (2.) For iiegTecting or refusing, Avithout reasonable cause, to join his ship, or to Neglecting or 
 
 proceeed to sea in his ship, or for absence without leave at any time refusing to 
 
 within 24 hours of the ship's sailing from any port either at the com- p^voce'ed to sea 
 
 mencement or during the progress of any voyage, or for absence at any absence witiilii 
 
 time without leave and without sufficient reason from his ship or from fi^u^g-jj'e;^"'' 
 
 his duty not amounting to desertion or not treated as such by the master, sailing, and 
 
 he shall be liable [to imprisonment for any period not exceeding ten weeks, absence with- 
 
 mth or without hard labour, and also, at the discretion of the court] (/), °"*^ ^'^^^'^ '^'^^ '• 
 
 to forfeit out of his wages a sum not exceeding the amount of 2 days' pay, 
 
 and in addition for every 24 hours of absence either a sum not exceeding 
 
 6 days' pay, or any expenses which have been properly incurred in 
 
 hiring a substitute : 
 
 (3.) For quitting the ship AAithout leave after her arrival at her port of delivery. Quitting 
 
 and before she is placed in security, he shall be liable to forfeit out of i^efore"slihf^° 
 his wages a sum not exceeding one month's pay : is secured : 
 
 (4.) For wilful disobedience to any lawful command he shall be liable to impri- Actof disobe- 
 sonment for any period not exceeding 4 weeks, with or Avdthout hard f^ence: 
 labour, and also, at the discretion of the court, to forfeit out of his wages 
 a sum not exceeding 2 days' pay : 
 
 (5.) For continued wiKul disobedience to lawful commands, or continued wilful Continued dis- 
 neglect of duty, he shall be liable to imprisonment for any period not obecUence. 
 exceeding 12 weeks, with or without hard labour, and also, at the dis- 
 cretion of the court to forfeit for eveiy 24 hours' continuance of such 
 disobedience or neglect either a sum not exceeding six days' pay, or any 
 expenses which have been properly incurred in hiring a substitute : 
 
 (6.) For assaulting any master or mate he shall be liable to imprisonment Assault on 
 for any period not exceeding 12 weeks, with or without hard labour : officers: 
 
 (7.) For combining with any other or others of the crew to disobey lawful Combining to 
 commands, or to neglect duty, or to impede the navigation of the ship or '^° ^^ ' 
 the progress of the voyage, he shall be liable to imprisonment for any 
 period not exceeding 12 weeks, with or without hard labour : 
 
 (8.) For wilfully damaging the ship, or embezzling or wilfully damaging any of Wilful damage 
 her stores or cargo, he shall be liable to forfeit out of his wages a sum ^"'^ embezzle- 
 equal in amount to the loss thereby sustained, and also, at the discretion 
 of the court, to imprisonment for any period not exceeding 12 weeks, 
 with or Avithout hard labour : 
 
 (9.) For any act of smuggling of which he is convicted, and whereby loss or ^nt°Jnu™nS°* 
 
 (c) See 34 & 35 Vict. e. 110, s. 7, and 36 & 37 (/) As to tlie parts within brackets being re- 
 
 Vict. c. 85, s. 9, when ship alleged to be unsca- pcalcd, see 43 & 44 \^ict. c. 16. 
 Worthy. ,Sce 43 & 44 Vict. c. 1«. 
 
 2 Y
 
 690 
 
 if. S. ACT, 1854, PAET 3, 
 
 loss to 
 owner. 
 
 Entry of 
 offences to bo 
 made in 
 official log, 
 and to be read 
 over or a 
 copy given 
 to the offender, 
 and his reply, 
 if any, to be 
 also entered. 
 
 Seamen whom 
 mastei's of 
 ships are 
 compelled ta 
 convey, and 
 persons going 
 in ships with- 
 out leave, to 
 be subject 
 to penalties 
 for breach of 
 discipline. 
 
 Master or 
 owner may 
 apprehend 
 deserters with- 
 out warrant («) 
 
 Deserters 
 may be sent 
 on board in 
 lieu of being 
 imprisoned (b). 
 
 Seamen 
 imprisoned 
 for desertion 
 
 tlamage is occa.sionecl to the master or o^v^ler, he shall be lial^le to pay to 
 such master or owner such a sum as is sufficient to reimburse the master 
 or owner for such loss or damage ; and the whole or a proportionate pai't 
 of his wages may be retaiiied in satisfaction or on account of such 
 liability, without prejudice to any further remedy. 
 
 244. Upon the commission of any of the offences enumerated in the last preced- 
 ing section an entry thereof shall be made in the oificial log-book, and shall be 
 signed by the master and also by the mate or one of the crew ; and the offender, if 
 still in the ship, shall before the next subsequent arrival of the ship at any port, 
 or if she is at the time iii port, before her departure therefrom, either be furnished 
 with a copy of such entry, or have the same read over distinctly and audibly to 
 him, and may thereupon make such reply thereto as he thinks fit ; and a state- 
 ment that a copy of the said entiy has been so furnished, or that the same has been 
 so read over as aforesaid, and the reply (if any) made by the offender, shall like- 
 wise be entered and signed in manner aforesaid ; and in any subsequent legal 
 proceeding the entries hereinbefore required shall, if practicable, be produced or 
 proved, and in default of such production or proof the coiut hearing the case may, 
 at its tUscretion, refuse to receive evidence of the offence. 
 
 245. Every seafaring person whom the master of any ship is, under the 
 authority of this Act or of any other Act of parliament, compelled to take on 
 board and convey, and every person who goes to sea in any ship without the con- 
 sent of the master or owner or other persons entitled to give such consent, shall, 
 .so long as he remains in such ship, be subject to the same laws and regulations for 
 preser%'ing discipline, and to the same penalties and punishments for offences con- 
 stituting or tending to a breach of discipline, to which he would be subject if he 
 were a member of the crew and had signed tlie agTeement. 
 
 246. Whenever, either at the commencement or during the progress of any 
 voyage, any seaman or apprentice neglects or refuses to join, or deserts from or 
 refuses to proceed to sea in any ship in which he is duly engaged to serve, or is 
 found otherwise aljsenting himself therefrom without leave, the master or any 
 mate, or the owner, ship's husband, or consignee, may, in any place in H. M.'s 
 dominions, with or without the assistance of tht; local police officers or constables, 
 who are hereby directed to give the same, if required, and also at any place out of 
 H. M.'s dominions, if and so far as the laws in force at such place will permit, 
 apprehend him without first procuring a warrant ; and may thereupon in any 
 case, and shall in case he so requires and it is ])racticable, convey him before some 
 coiut capable of taking cognizance of the matter, to be dealt with according to 
 law ; and may, for the piu'pose of conveying him before such court, detain him in 
 custody for a period not exceeding 24 hours, or such shorter time as may 
 be necessary, or may, if he does not so rerjuire, or if there is no such coiu't at or 
 near the place, at once convey him on board ; and if any such apprehension 
 appears to the coui-t before which the case is brought to have been made on 
 improper or on insufficient grounds, the master, mate, owner, sliip's husband, or 
 consignee who makes the same or causes the same to be made shall inciu" a penalty 
 not exceeding £20 ; but such penalty, if inflicted, shall be- a bar to any action for 
 false imprisonment in respect of such apprehension. 
 
 247. Whenever any seaman or apprentice is brought before any court on the 
 ground of his having neglected or refused to join or to proceed to sea in any ship 
 in which he is engaged to serve, or of ha\'ing cleserted or otherwise absented himself 
 therefi'om Avithout leave, such court may, if the master or the owner or his agent 
 so requires [instead of committing the offender to prison] (c), cause him to be 
 conveyed on board for the purpose of proceeding on the voyage, or deliver him to 
 the master or any mate of the ship, or the owner or his agent, to be by them so 
 conveyed, and may in such case order any costs and expenses properly incurred l\y 
 or on behalf of the master or owmer by reason of the offence to be paid by the 
 offender, and, if necessary, to be deducted from any wages which he has then 
 earned, or which bj' Airtue of his then existing engagement he may afterwards earn. 
 
 248. If any seaman or apprentice is imprisoned on the ground of his having 
 neglected or refused to join or to proceed to sea in any ship in which l:e is 
 
 (n) As to this section beina 
 43 & 44 Vict. c. 16. 
 (b) See43&44 Vict. c. IC. 
 
 repealed, sec 
 
 (c) As to the part within brackets being re- 
 pealed, sec 43 ^ 44 Yict. c. Iti,
 
 J 7 & 18 VICT. 0. 104. 691 
 
 engaged to serve, or of having deserted or otherwise absented himself therefrom or breach of 
 without leave, or of his having committed any other breach of discipline, and if discipline 
 during such imprisonment and before his engagement is at an end his services are ^^board 
 required on board his ship, any justice may, at the request of the master or of the before teniii- 
 owner or his agent, cause such seaman or ajiprentice to be conveyed on board his sentence^ (a). 
 said ship for the purpose of proceeding on the voyage, or to be delivered to the 
 master or any mate of the ship, or to the owner or his agent, to be by them so 
 conveyed, notwithstanding that the termination of the period for which he was 
 sentenced to imprisonment has not arrived. 
 
 249. In all cases of desertion fi'om any ship in any place abroad, the master Entries of 
 shall produce the entry of such desertion in the official log-book to the person or J;f' f/g^gg^fon 
 persons hereby required to endorse on the agreement a certificate of such deser- iiin-oad to be 
 tion ; and such jjerson or persons shall thereupon make and certify a cojjy of stich copied, se^nt 
 entry, and also a copy of the said certificate of desertion ; and if such person is a admitted in 
 ]iublic functionary he shall, and in other cases the said master shall forthwith evidence. 
 transmit such copies to the registrar-general of seaman {d) in England ; and the said 
 registrar shall, if required, cause the same to be produced in any legal proceeding ; 
 
 and such copies, if purporting to be so made and certified as aforesaid, and 
 certified to have come from the custody of the said registrar, shall in any legal 
 proceeding relating to such desertion be received as evidence of the entries therein 
 appearing. 
 
 250. Whenever a question arises whether the wages of any seaman or appren- Facilities for 
 tice are forfeited for desertion, it shall be sufficient for the party insisting on the proving deser- 
 forfeiture to show that such seaman or apprentice was duly engaged in or that he as^concems 
 belonged to the ship from which he is alleged to have deserted, and that he forfeiture of 
 quitted such ship l:)efore the completion of the voj^age or engagement, or if ■^ages. 
 such voyage was to terminate in the U. K. and the ship has not returned, that 
 
 he is absent from her, and that an entry of the desertion has been duly made in 
 the official log-book ; and thereupon the desertion shall, so far as relates to any 
 forfeiture of wages or emoluments under the provisions hereinbefore contained, 
 be deemed to be proved, unless the seaman or apprentice can produce a proper 
 certificate of discharge, or can otherwise show to the satisfaction of the cotirt that 
 he had sufficient reasons for leaving the ship. 
 
 251. Whenever in any proceeding relating to seamen's wages it is shown that Costs of pro- 
 any seaman or apprentice has in the course of the voyage been convicted of any «onmfnt"m.'iv 
 offence by any competent tribunal and rightfully punished therefor by imprison- to the extent' 
 ment or otherwise, the court hearing the case may direct a jDart of the wages "^ ^'- '^^ , 
 due to such seaman, not exceeding 'M., to be applied in reimbursing any costs wages. 
 properly incurred by the master in procuring such conviction and punishment. 
 
 252. Whenever any seaman contracts for wages by the voyage, or by the run or Amount of 
 by the share, and not by the month or other stated period of time, the amount of [j°'^°J-*"^q 
 forfeiture to be incurred under this Act shall be taken to be an amount bearing ascertained 
 the same proportion to the whole wages or share as a calendar month or other the when seamen 
 period hereinbefore mentioned in fixing the amount of such forfeiture (as the case ^j°" voyage."^ 
 may be) bears to the whole time spent in the voyage ; and if the whole time spent 
 
 in the voyage does not exceed the period for which the pay is to be forfeited, the 
 forfeiture shall extend to the whole wages or share. 
 
 253. All clothes, effects, wages, and emoluments which under the provisions Application of 
 hereinbefore contained are forfeited for desertion shall be applied, in the first °^^*^i''"^s^' 
 instance, in or towards the reimbursement of the expenses occasioned by such 
 desertion to the master or owner of the ship from which the desertion has taken 
 
 place ; and may, if earned subsecj^uently to the desertion be recovered by such 
 master, or by the owner or his agent, in the same manner as the deserter might 
 have I'ecovered the same if they had not been forfeited ; and in any legal proceed- 
 ing relating to such wages the court may order the same to l^e paid accordingly ; 
 and subject to such reimbursement the same shall be paid into the receipt of 
 H. M.'s exchequer in such manner as the treasury may direct, and shall be carried 
 to and form part of the consolidated fund of the U, K. ; and in all other cases of 
 forfeiture of wages imder the provisions hereinbefore contained the forfeititre 
 shall, in the absence of any specific directions to the contrary, be for the benefit of 
 the master or owner by whom the wages are payable. 
 
 (f?) Now registrar-general of shipping and seamen ; sec 35 & 36 Vict. c. 73, s. i, jiost, 
 
 2 Y 2
 
 602 
 
 M. S. AOT, 1854, PAT^T 3, 
 
 Questions 
 of forfeitures 
 luiiy bo 
 decided iu 
 suits for wages. 
 
 Penalty for 
 false statement 
 as to last ship 
 or name. 
 
 Fines to be 
 deducted 
 from wages, 
 and paid 
 to shippins 
 master («). 
 
 Penalty for 
 enticing to 
 desert, and 
 harbouring 
 deserters <^b). 
 
 Penalty for 
 obtaining 
 passage 
 surreptitiously. 
 
 On change of 
 masters, certain 
 
 254. Any question concerning the forfeiture of or cletluctions from the w.igos 
 of any seaman or appi'entice may be determined in any proceeding lawfully 
 instituted vith respect to such wages, notwithstanding that the offence in respect 
 of which such question arises, though liereby made punishable by imprison- 
 ment as wall as forfeiture, has not been made the subject of any crindnal 
 proceeding. 
 
 255. If any seaman on or before being engaged wilfully and fraudulently makes 
 a false statement of the name of his last ship or last alleged ship, or wilfully and 
 fraudulently makes a false statement of his own name, he shall incur a penalty 
 not exceeding 5/. ; and such penalty may be deducted from any wages he may earn 
 by virtue of such engagement as aforesaid, and shall, subject to reimbursement of 
 the loss and expenses (if anj) occasioned by any preAious desertion, be paid and 
 applied in the same manner as other penalties payable imder this Act. 
 
 256. "Whenever any seaman commits an act of misconduct for which his agree- 
 ment imposes a fine, and wliich it is intended to punish by imposing such fine, an 
 entry thereof shall l)e made in the otficial log-book, and a copy of such entry 
 shall be furnished or the same shall be read over to the offender, and an entry of 
 sucli reading o^'er, and of the reply (if any) made liy the offender, shall be made, 
 in the manner and sttliject to the conditions hereinbefore specified with respect to 
 the oftences against discipline specified in and punishalde imder this Act ; and 
 .such fine shall be deducted and ^lEtid over as follows ; (that is to say,) if the 
 oflender is discharged in the U. K., and the offence and such entries in respect 
 thereof as aforesaid are proved, in the case of a foreign-going sliip to the satisfaction 
 of the shipping master («) before whom the ott'ender is discharged, and in the case 
 of a home-trade ship to the satisfaction of the shipping master (o) at or nearest to 
 the place at Avhich the crew is dischai-ged, the master or owner shall deduct such fine 
 from the wages of the oftender, and pay the same over to such shipping master («); 
 and if before the fuial discharge of the crew in the U. K. any such offender a.s 
 aforesaid enters into any of H. M.'s ships, or is discharged abroad, and the oftence 
 and such entries as aforesaid are proved to the satisfaction of the officer in com- 
 jnand of the ship into wliich he so enters, or of the consular officer, officer of 
 customs, or other person by whose sanction he is so discharged, the fine shall 
 thereupon be deducted as aforesaid, and an entry of such deduction shall then be 
 made in the official log-l>ook (if any) and signed hj such officer or other person ; 
 and on the return of the ship to the U. K. the master or owner shall pay over such 
 fine, in the case of foreign-going ships to the shipping master (a) before whom the 
 crew is discharged, and in the case of home-trade ships to the shipping master («) 
 at or nearest to the place at wlrich the crew is discharged ; and if any master or 
 owner neglects or refuses to pay over any such fine in manner aforesaid, he .shall 
 for each such offence incur a penalty not exceeding six times the amount of the fine 
 retained by him : provided that no act of misconduct for which any such fine as 
 aforesaid has been inflicted and 2:)aid shall be otlierwise punished under the provi- 
 sions of this Act. 
 
 257. Every person who, by any means whatever, persuades or attempts to 
 persuade any seaman or apprentice to neglect or refuse to join or proceed to sea 
 in or to desert from his ship, or otherwise to absent himself from his duty, shall, 
 for each such ofl'ence in respect of each such seaman or apprentice, incur a penalty 
 not exceeding £10 ; and every person who wilfully harbours or secretes any sea- 
 man or apprentice who has deserted from his ship, or who has wilfully neglected 
 or refused to join or has deserted from his ship, knowing or liaving reason to 
 believe such seaman or apprentice to ha\'e so done, shall, for every such seaman 
 or apprentice so hai'boured or secreted, incur a penalty not exceeding £20. 
 
 258. Any person who secretes himself and goes to sea in anj' ship without the 
 consent of either the oAvner, consignee, or master, or of a mate, or of any person 
 in charge of such ship, or of any other person entitled to give such consent, shall 
 incur a penalty not exceeding £20, or be liable to imprisonment, with or without 
 hard labour, for any period not exceeding 4 weeks. 
 
 259. If, during the progress of a A'oyage, the master is superseded, or for any 
 
 (a) Now a superintendent of a mercantile 
 marine office; see 25 & 26 Vict. c. 63, s. 16, post. 
 
 (b) Lear;/ v. Lloi/d, 29 L. J. M. C. 194. As to 
 the limit of time for instituting proceedings, see 
 
 sect. 526. Atisthi v. Olsen, 37 L. J. M. C. 34. 
 An offence may have been committed although 
 there was an informality in the engagement 
 entered into by the seaman (S. C.)
 
 17 & 18 VICT. c. 104. 693 
 
 other reason r^uits tlie ship aud is succeeded in the command by some other person, documeuts to be 
 lie shall deliver to his successor the various documents relating to tlie navigation '^^fl^*^'^ °7^''" ^° 
 of the ship, and to the crew thereof which are in his custodj', and shall, in default, 
 incur a penalty not exceeding iJ 100 ; and such successor shall, immediately on 
 assuming the command of the ship, enter in the official log a list of the documents 
 so delivered to him. 
 
 Naval Courts on the High Seas and Abroad. Naval Courts 
 
 260. Any officer in command of any ship of H. M. on any foreign station, or, ^avl!eTan> 
 in the absence of such officer, any consular officer, may summon a court, to be moIied for hoar- 
 termed a " Naval Court," in the folloA^dng cases : (that is to say,)— lu d 1™^^! i^a t*i n 
 
 (1.) Whenever a complaint which appears to such officer to require immediate wrecks'onihe" 
 investigation is made to Mm by the master of any British ship, or by high seas or 
 any certificated mate, or by one or more of the seamen belonging to '^'^^'O'^'l- 
 any such ship : 
 
 (2.) Whenever the interest of the oAvner of any British ship or of the cargo of 
 any such ship appears to such officer to requii'e it : 
 
 (3.) Whenever any British ship is AVTecked or abandoned, or otherwise lost at or 
 near the place where such officer may be, or whenever the crew or part 
 of the crew of any British sliip which has been wrecked, abandoned, or 
 lost abroad, arrives at such place. 
 
 261. Every such naval court as aforesaid shall consist of not more than five and ConsUUition of 
 not less than three members, of whom, if possible, one shall be an officer in the 
 
 naval service of H. M. not below the rank of lieutenant, one a consular officer, and 
 one a master of a British merchant ship, aud the rest shall be either officers in 
 the naval service of H. M., masters of British merchant ships, or British mer- 
 chants ; and such court may include the naval or consular officer summoning 
 the same, but shall not include the master or consignee of the ship to which the 
 parties complaining or comj)lained against may belong ; and the naval or consular 
 officer in such court, if there is only one such officer in the court, or, if there is 
 more than one, the naval or consular officer who, according to any I'egulations for 
 settHng their respective ranks for the time being in force, is of the highest rank, shall 
 be the president of such court. 
 
 262. Every such naval court shall hear and investigate the complaint brought General 
 before it, or the cause of the wreck or abandonment (as the case may be), and may fnodo'of ^ '^^^ 
 for that purpose summon aud compel the attendance of parties and witnesses, and actiou of such 
 administer oaths, and order the production of documents, and shall conduct the courts (c). 
 investigation in such manner as to give any person against whom any charge is 
 
 made an opportunity of making a defence. 
 
 263. Every such naval court may, after hearing the case, exercise the following po^rej. of gu^i 
 powers ; (that is to say,) — . courts : 
 
 (1.) It may, if mianimous that the safetj^ of the slup or crew, or the interest of To supersede 
 the owner, absolutely requires it, supersede the master, and may appoint ^^^ master ; 
 another person to act in his stead ; but no such appointment shall be 
 made without the consent of the consignee of the ship, if then at the 
 place : 
 
 (2.) It may discharge any seaman from his ship : To discharge 
 
 (3.) It may order the wages or any seaman so discharged or any part of such a seaman : 
 wages to be forfeited, and may direct the same either to be retained by •^■a'^M P^** 
 Avay of compensation to the owner, or to be paid into the receipt of 
 H. M.'s exchequer, in the same manner as other penalties and forfeitures 
 under this Act : 
 
 (4.) It may decide any questions as to wages, or fines, or forfeitures, arising To decide 
 
 between any of tlie parties to the proceedings : wi|esf &c! :''° 
 
 (5.) It may direct that all or any of the costs incurred by the master or owner xo direct costs 
 of any ship in procuring the imprisonment of any seaman or apprentice "f imprisonment 
 in a foreign port, or in hia maintenance whilst so imprisoned, shall be ^j ^"^3^:°"' 
 
 (o) Sec 18 & 19 Vict, c, 01; s, 18 ; 31 & 33 Vict .c. 110, 5. 8.
 
 694 
 
 M. S. ACT, 1854, TART 3, 
 
 To send borne 
 otfenders for 
 trial : 
 
 To order 
 payment of 
 costs, &.C. 
 
 Orders to be 
 entered iii 
 ofBcial log. 
 
 Report to be 
 made of 
 proceedings of 
 naval coiuts. 
 
 Penalty for 
 l)reveuting 
 complaint ; or 
 ob-itructing 
 iuvestigation. 
 
 paid (Jilt ol' aud ilcducted from the wages of such seaman or apprentice, 
 Avhether then or subsequently earned : 
 (G.) [t may exercise the same powers with regard to persons charged before it 
 with the commission of oflences at sea or abroad, as are by this Act 
 given to British consular otficers : 
 (7.) It may order the costs of the proceeding before it (if any), or any poilion 
 thereof, to be paid by any of the parties thereto, and may order any person 
 making a frivolous or vexatious complamt to pay compensation for any 
 loss or delay caused thereby ; and any cost or compensation so ordered 
 shall be paid by such person accordingly, and may be recovered in the 
 same manner in which the wages of seamen are recoverable, or may, if 
 the case admits, be deducted from his wages ; 
 And all orders duly made by any such court under the powers hereby given 
 to it, shall, in any subsequent legal proceedings, be deemed conclusive as to the 
 rights of the parties. 
 
 264. All orders made by any such naval court shall, whenever practicable, be 
 entered in the official log-book of the ship to which the parties to the proceedmgs 
 before it belong, and shall be signed by tlu; president of the court. 
 
 265. Every such naval court shall make a report to the Board of Trade, con- 
 taining the following particulars ; (that is to say,) — 
 
 (1.) A statement of the proceedings, with the order made by the court, and a 
 
 report of the evidence : 
 (2.) An account of the wages of any seaman or apprentice who is discharged 
 
 from his ship by such court : 
 (3.) If summoneel in order to inquire into a case of -wi-eck or abandonment, a 
 statement of the opinion of the court as to the cause of such wreck or 
 abandonment, with such remarks on the conduct of the master luid crew 
 as the circumstances require : 
 And every such report shall be signed by the president of the court ; and every 
 document purporting to be such a report, and to be so signed as aforesaid, shall, 
 if produced out of the custody of some officer of the Board of Trade, be deemed 
 to he such report, unless the contrary is jiroved, and shall be received in evidence, 
 subject to all just exceptions. 
 
 266. Any person who wilfully and without due cause prevents or obstructs the 
 making of any such complaint as last aforesaid, or the conduct of any case or 
 investigation by any naval court, shall, for each such ofience, incur a penalty not 
 exceetling £oV, or be liable to imprisonment, with or without hard labour, for any 
 period not exceeding 12 weeks. 
 
 Crimes com- Crimes committed on the High ^cas and Abroad, 
 
 viitted Abroad. 
 
 Offences 267. All offences against property or person committed in or at any place, either 
 
 BiitiSi^eamen ashore or afloat, out of H. M.'s doniinions, by any master, seaman, or apprentice, 
 at foreign ports who, at the time when the oftence is committed, is, or within 3 months i)re- 
 Admindty " A^ously has been employed in any British ship, shall be deemed to be oflences of 
 jurisdiction (a), the same nature respectively, and be liable to the same punishments respectively, 
 
 («) See 18 & 19 Vict. c. 91. s. 21, post; 30 «t 31 
 Vict. c. 12-1, s. 11, post. As to the trial of offences 
 committed on tlieliigli sean, see 1 Russ. on Crimes, 
 bv Prentice, p. 10, under the Criminal Consolida- 
 tion Acts passed in the 24 & 25 Vict, offences 
 committed at sea may be tried in any county or 
 place in England in wliicli the offender is appre- 
 hended or in custody. As to where a trial for 
 murder or manslaughter is to take place, where 
 the act causing death took place out of England, 
 &c.. see 24 & 25 Vict. c. KHi, ss. 9, 10. As to the 
 jurisdiction of the Central Crim. Court, see 4 & 5 
 AVill. 4, c. 36, s. 22. A foreigiier committing an 
 offence on a British ship is liable to the law of 
 England ; R. v. Lojkx, 27 L. J. M. C. 48. 
 
 The 12 & 13 Vict. c. 96. provides.— 
 Sect. 1. Thatifanyperson within any colony sliall 
 be charged with the conmiissidu of any treason, 
 piracy, felony, robbery, juurdcr, conspiracy, or 
 other iiffence, of wh.-it nature or kind soever, 
 committed upon the sea, or in any haven, river, 
 creek, or place where the admiral or admirals have 
 power, authority, or jurisdiction, or if any person 
 cbarged with the commission of any such offence 
 upon the sea, or in any such haven, river, creek, 
 or place, shall be brought for trial to any colony, 
 then anil in cvei-y such case all magistrates, jus- 
 tices of the jieace, publicprosecutors, juries, judges, 
 courts, imblic olliccrs, and other persons in such 
 colony shall have and exercise the same jurisdic-
 
 17 & 18 viGT. c. 104. 
 
 695 
 
 find be iiiqiiii-ed of, heard, tried, determined, aud adjudged in the same manner and 
 by the same courts and in the same places as if such offences had been conmiitted 
 Avi thin the jurisdiction of the Admiralty of England ; and the costs and expenses 
 of the prosecution of any such otlence may be directed to be paid as in the case of 
 costs and expenses of prosecutions for offences committed within the jurisdiction 
 of the Admiralty of England. [See s. 518.] 
 
 268. The following rides shall be observed mth respect to offences committed oSere and 
 on the high seas or abroad ; (that is to say,) witnesses to 
 
 (1.) Wiienever any complaint is made to any British consular officer of any of y°so'',ije'^Bj|['i5l"^ 
 the offences mentioned in the last preceding section, or of any offence on possession, 
 the high seas having been committed by any master, seaman, or apprentice 
 belonging to any British sliip, such considar officer may inquire into the 
 case upon oath, and may, if the case so requires, take any steps in liis 
 power for the purpose of placing the offender under necessary restraint, 
 and of sending him as soon as practicable in safe custody to the U. K., 
 or to any British possession in which there is a court capable of taking 
 
 tion and authorities for inquiring of, trying, 
 hearing, determining, and adjudging sucli offences, 
 and tliey are hereby respectively authoiized, 
 empowered, and required to institute and carry 
 on all such proceedings for the bringing of such 
 persons so charged as aforesaid to trial, and for 
 and auxilliary to and consequent upon the trial 
 of any such persons for any such offence where- 
 vnth he may be charged as aforesaid, as by tlie 
 law of such colony would and ought to have been 
 had and exercised or instituted and carried on by 
 them respectively if such offence had been com- 
 mitted, and such person had been charged ^\ith 
 having committed the same, upon any waters 
 situate within the limits of any such colony, and 
 withui the limits of the local jurisdiction of the 
 courts of criminal justice of such colony. 
 
 .Sect. 2. Provided always, and be it enacted, 
 that if any person shall l)e convicted before any 
 such court of any such offence, such person so 
 convicted shall be subject and liable to and shall 
 suffer all such and the same jjains, penalties, aud 
 forfeitures as by any law or laws now in force 
 persons convicted of the same respectively would 
 be subject aud liable to in case such offeuce had 
 been committed and were inquired of, tried, 
 heard, determined, aud adjudged, in England, any 
 law, statute, or usage to the contrary notwith- 
 standing. 
 
 Sect. 3. And be it enacted, that wliere any person 
 shall die in any colony of any stroke, poisoning, 
 or hurt, such person having been feloniously 
 stricken, poisoned, or hurt upon the sea, or in 
 any haven, river, creek, or place where the 
 admiral or admirals have power, authority, or 
 jurisdiction, or at any place out of such colony, 
 every offence committed in respect of any such 
 case, whether the same shall amount to the offence 
 of murder or of manslaughter, or of being acces- 
 sory before the fact to murder, or after the fact 
 to murder or manslaughter, nuxy be dealt with, 
 inquired of, tried, determined, and punished in 
 such colony in the same manner in all respects 
 as if such offence had been wholly committed in 
 that colony ; and that if any person in any colony 
 shall be charged with any such offence as aforesaid 
 in respect of the death of any person who having 
 been feloniously strickeu, poisoned, or otherwise 
 hurt, shall have died of such stroke, poisoning, or 
 hurt upon the sea, or in any haven, river, creek, 
 or place where tlie admiral or admirals have 
 power, authority, or jurisdiction, such offence 
 shall be held for'the purpose of this Act to have 
 been wholly committed upon the sea. 
 
 Sect. 4. Provided also, and be it enacted, that no- 
 thing in this Act contained shall in any way affect 
 or abridge the jurisdiction of the Supreme Court 
 of New South Wales and Van Dieman'sLand as es- 
 tablished by an Act passed in the 9th year of the 
 1-eiga of Kins treorge the 4lh, intituled " Au Act 
 
 to provide for tlie Administration of Justice in 
 New South Wales and Van Dieman's Land, and 
 for the more effectual Government thereof, and 
 for other purposes relating thereto." 
 
 Sect. 5. And be it enacted, that lor the purposes 
 of this Act the word "colony" shall mean any 
 island, plantation, colony, dominion, fort, or fac 
 toryof Her Majesty, except any island within the 
 United Kingdom aud the Islands of Man, Guern- 
 sey, Jersey, Alderney, and Sark, and the islands 
 adjacent thereto respectively, and except also all 
 such parts and places as are under the govern- 
 ment of the Bast India Company ; and the word 
 " governor " shall mean the otticer for the time 
 being administermg the government of any 
 colony. 
 
 By 23 & 24 Vict. c. 88, s. 1, so much of the said 
 Act (12 & 13 Vict. c. 96) as excepts the parts and 
 places then under the government of the East 
 ludia Company from the interpretation of the 
 word '• colony," shall be reiiealed ; and for the 
 purposes of the said Act the word "colony" 
 therein shall include and apply to every part and 
 place heretofore under the government of the 
 Bast India Company, or which may be under the 
 government of Her Majesty in India, and all the 
 provisions of the said Act shall bo coustrued 
 and take effect accordingly. 
 
 Sect. 2. Provided always, that where any person 
 within any place in India is charged with the 
 commission of any offence in respect of which 
 jurisdiction is given by the said Act, or where 
 any person charged with the commission of any 
 such offence is brought for trial uuder the said 
 Act to any place in India, if at any time before 
 his trial he make it appear to the court exercising 
 criminal jurisdiction in the place where he is 
 so charged or brought for trial, that in case the 
 otfence charged had been committed in such 
 place he could have been tried only in the 
 •supreme court of one of the three presidencies 
 in IncUa, and claim to be tried by such supreme 
 court accorchngly, the said court exercising 
 cruuinal jurisdiction as aforesaid shall certify the 
 fact and claun to the governor of such place or 
 chief local authority thereof, aiul such go- 
 vernor or chief local authority thereupon shall 
 order and cause the person charged to be sent in 
 custody to such one of the presidencies as such 
 governor shall think fit for trial before the 
 supreme court of such presidency, and the said 
 supreme court and all public officers and other 
 per.sous in the presidency shall have the same 
 jurisdiction and authorities aud proceed in the 
 same maimer in relation to the person charged 
 with such offence, as if the same had been com- 
 mitted or originally charged to have been com- 
 mitted within the limits of the ordinary juris- 
 diction of such supreme courU
 
 69G 
 
 Jl. b;. ACT, 1854, I'AKT 3, 
 
 luquiry into 
 cause of death 
 on board. 
 
 Depositions to 
 be received in 
 evidence t\ ben 
 witness cannot 
 be produced. 
 
 cognizance ol" the ollence, in any .'^hip Ijclonging to 11. M. or to lUiy of her 
 .subjects, to be there proceeded against according to law : 
 (2.) For the purpose aforesaid such con.sular otiicer may order the luaster of any 
 ship belonging to any subject of her Majesty bound to the U. K., or to 
 .such British possession as aforesaid, to receive and afford a passage and 
 subsistence during the voyage to any such offender as aforesaid, and to 
 the -witnesses, so that such master be not required to receive more than 
 one olfender for every 100 tons of his ship's registered tonnage, or more than 
 one witness for every 50 tons of such tonnage ; and such consular ofticer 
 .shall indorse upon the agreement of the sliip .such particulars with 
 respect to any otfenccs or witnesses sent in her as the Board of Trade 
 requires : 
 (3.) Every such master shall, on his ship's arrival in the U. K., or in such 
 British possession as aforesaid, give every offender so committed to his 
 charge into the custody of some police officer or constable, who shall take 
 the offender before a justice of the peace or other magistrate by law- 
 empowered to deal with the matter, and such justice or magistrate shall 
 deal with the matter as in cases of offences committed itpon the high 
 seas : 
 And any such master as aforesaid who, when required by any British consular 
 othcer to receive and afford a passage and subsistence to any offender or witness, does 
 not receive him and afford such passage and subsistence to him, or who does not 
 deliver any offender committed to his charge into the custody of some police otiicer 
 or constable as herein-before directed, shall for each such offence incur a penalty 
 not exceeding 50/. ; and the expenses of imprisoning any such offender and of 
 conveying him and the witnesses to the U. K. or to such British possession as 
 aforesaid in any manner other than in the ship to which they respectively belong, 
 .shall l)e part of the costs of the prosecution, or be paid as costs incurred on account 
 of seafarmg subjects of H. M. left in distress in foreign parts. 
 
 269. Whenever any case of death happens on board any foreign-going shi]), the 
 shipping master (a) shall on the arrival of such ship at the port where the crew is 
 discharged inriuii'e into the cause of such death, and shall make on the list of the 
 crew delivered to him as herein requii-ed an endorsement to the effect either that 
 the .statement of the cause of death therein contained is in his opinion true or 
 otherwise, as the result of the inquiry requires ; and every such shipping master 
 shall for the purpose of such in([uiry have the powers hereby given to inspectors 
 ai)pomted by the Board of Trade under the first part of this Act ; and if in the 
 course of such inquiry it appears to him that any such death as aforesaid has been 
 caused by violence or other improper means, he shall either report the matter to 
 the Board of Trade, or, if the emergency of the case so requii-es, shall take imme- 
 diate steps for bringing the offender or offenders to justice. 
 
 270. Whenever in the course of any legal proceedings instituted in any part of 
 H. I\I.'s dominions before any judge or magistrate, or before any person authorized by 
 law or by consent of parties to receive eA-idence, the testimony of any witness is 
 required in relation to the subject-matter of such proceeding, then upon due 
 jDroof, if such proceeding is instituted in the U. K., that such witness cannot be 
 found in that kingdom, or if in any British possession, that he cannot be found in 
 the same possession, any deposition that such witness may have previously made 
 on oath in relation to the same subject-matter before any jitstice or magistrate in 
 H. I\I.'s dominions, or any British consular officer elsewhere, shall be admissible in 
 evidence, suliject to the following restrictions ; (that is to say,) 
 
 (L) If such deposition was made in the U. K., it shall not be acbiiissible in any 
 
 proceeding instititted in the U. K. : 
 (2.) If such a deposition was nuide in any British possession, it shall not be 
 
 admissible in any proceeding instituted in the same British possession : 
 '^3.) If the proceeding is criminal, it shall not be admissible unless it was made 
 in the presence of the person accused : 
 Every deposition so made as aforesaid shall be authenticated by the signature of 
 the judge, magistrate, or consular officer, before whom the .same is made ; and 
 
 (a) Kow a surcriutcndenl of tt mercauiUc uiariuc oUice ; sec 25 & 26 Vict. c. 63, s. !5, i^osl,
 
 17 & 18 VICT. c. 104. ' 697 
 
 such judge, magistrate, or consular officer shall, when the same is taken in a 
 criminal matter, certify, ii' the fact is so, and that the accused was present at the 
 taking thereof, but it shall not be necessary in any case to prove the signature or 
 official character of the person appearing to have signed any such deposition ; and 
 in any criminal proceeding such certiticate as aforesaid shall, unless the contrary 
 is proved, be sutficient evidence of the accused having been present in manner 
 thereby certified ; but notliing lierein contained shall affect any case in which 
 depositions taken in any proceeding are rendered admissible in evidence by any Act 
 of parliament, or by any act or ordinance of the legislature of any colony, so far 
 as regards such colony, or to interfere with the power of any colonial legislature 
 to make such depositions admissible in evidence, or to interfere with the practice 
 of any court in which depositions not authenticated as herein-before mentioned 
 are admissible. 
 
 Registration of and Returns respedinrj Seamen (see sect. 109, ante, p. 657). ^midReturnl 
 
 respectin/f 
 
 271. There shall be in the port of London an office, to be called the " General - — 
 Register and Record Office of Seamen," and the Board of Trade shall have control Establishment 
 over the same, and maj'' appoint and from time to time remove a registrar general, office, '^ 
 and such assistants, clerks, and servants as may be necessary, and may from time to 
 
 time, with the consent of the treasury, regulate their salaries and allowances ; and 
 such salaries and allowances, and all other necessary expenses, shall be paid by 
 the treasury out of any monies to be granted Ijy parliament for that purpose : and 
 the Board of Trade may direct the business of the register office at any of the 
 outports to be transacted at the shipping office (b), or, with the consent of the 
 commissioners of customs, at the custom-house of the port, and may appoint the 
 shipping master (c), or with such consent as aforesaid, some officer of customs, to 
 conduct the same ; and such business shall thereupon be conducted accord- 
 ingly, but shall in all cases be subject to the immediate control of the Board of 
 Trade. 
 
 272. The said registrar general of seamen (d) shall, by means of the agreements. Register of 
 lists, and other papers to l^e transmitted to him as herein directed, or Ijy such other seamen to be 
 means as are in his power, keep a register of all i)ersons Avho serve in ships subject 
 
 to the provisions of this A ct. 
 
 273. Every master of every foreign-going ship of Avliich the crew is discharged Lists to be made 
 in the U. K., in whatever part of H. M.'s dominions the same is registered, and contliliJng"^' 
 
 of every home-trade ship, shall make out and sign a list, in a form sanctioned by certaiu parti- 
 the Board of Trade, containing the following particulars ; (that is to say,) culaw. 
 
 (1.) The number and date of the ship's register and her registered tonnage: 
 (2.) The length and general nature of the voyage or em23loyment : 
 (3.) The christian names, surnames, ages, and places of birth of all the crew, 
 
 including the master and apprentices; their- qualities on board, their 
 
 last ships or other employments, and the dates and places of theu- joining 
 
 the ship : 
 (4.) The names of any members of the crew who have died or otherwise ceased 
 
 to belong to the ship, with the times, places, causes, and circumstances 
 
 thereof : 
 (5.) The names of any members of the crew Avho have been maimed or hurt, 
 
 with the times, places, causes, and circumstances thereof: 
 (6.) The wages due to any of the crew who have died, at the times of their 
 
 respective deaths : 
 (7.) The clothes and other effects belonging to any of the crew who have died, 
 
 ^vith a statement of the manner in which they have been dealt with, antl 
 
 the money for which any of them have been sold : 
 (8.) [Repealed by 37 & 38 Vict. c. 88, s. 54] (e) : 
 (9.) [Repealed by 37 & 38 Vict. c. 88, s. 54] (e) : 
 
 (&) Now mercantile marine office ; see 25 & 26 (fZ) Now registi-ar-general of shipping and 
 
 Vict. c. 63, s. l.'j. seamen ; &ec 35 & 36 Viet. c. 73, s. 4. 
 
 (c) Now ;i supcriiitendcut of a mercantile (c) Sec 37 & 3S Vict. c. 88, s. 37, pu.'il. By this 
 
 mai-inc office ; see 25 i; 2ti Vict. c. 63, s. 10, post, enactment the provisions of this Act, save as
 
 698 
 
 M. S. ACT, 1854, TAET 3, 
 
 (10.) Eveiy marriage wliicli takes place on board, with the date thereof, and 
 
 the names and ages of the parties. 
 
 Lists for foreigu- 274. In the case of foreign-going ships, the master shall ^vithin 48 honrs after 
 
 be delivered on tlie ships anival at her final port of destination in the U. K ., or upon the dis- 
 
 arrival. 
 
 lierein expressly provided, shall not apply to the 
 registration of births and deaths on board a 
 vessel at sea, with respect to wliich the following 
 provisions shall have effect : 
 (1.) Tlic captain or master of, or other person 
 having the connnand or charge of a 
 British ship .shall, as soon as may be after 
 the occurrence of the biith of a child, or 
 tlie death of a person on board such ship, 
 record in his log-book or otherwise the 
 fact of such birth or death, and the 
 particulars required by the fourth sche- 
 dule (o) to this Act to be registered con- 
 cerning such birth or death, or such of 
 them as may be known to him, and shall 
 (unless the ship is one of Her Majesty's 
 sliips) upon the arrival of such ship at 
 any port of the United Kingdom, or at 
 .such other time or place as the Board of 
 Trade may from time to time with re- 
 spect to any ship or class of ships direct, 
 deliver, or send, in such form and manner 
 as the Board of Trade may from time to 
 time direct, a return of the facts so 
 recorded to the Registrar-General of 
 Shipping and Seamen. 
 (2.) wiiere a ship which is not a British ship 
 carries passengers to or from any port of 
 the United Kingdom as the port of desti- 
 nation or the port of departure of sucli 
 ship, the provisions of this section shall 
 apply to the captain or master of, ov 
 other person h.iving the command or 
 charge of such ship, m like manner as if 
 it were a British ship. 
 (3.) Wlierc the said return is directed by the 
 Board of Trade (whether the ship is 
 British or foreign) to be delivered upon 
 the arrival of the shij). or the discharge 
 of the crew, or otherwise at any poit or 
 place out of the United Kingdom, the 
 Board of Trade may, if they tliink fit, 
 direct that the return, instead of being 
 delivered to the Registrar-General of 
 .Shipping and Se<imen. shall be delivered, 
 and the .siime shall accordingly be deli- 
 vered, if such port or place is within Her 
 Majesty's dominions , to the shipping 
 master (6) or collector of customs at such 
 port or place, and if it is a foreign port 
 or place, to the principal British consular 
 officer at the .said foreign port or place, 
 and such shipping master (h). collector, or 
 officer shall send the same, as soon as 
 may be, by post or otherwise, to the 
 Registrar - General of Shipping and 
 Seamen, 
 (■t.) Wliere it appears from any such return 
 that the father of any child so born, or 
 if the child is a bastard the mother of 
 
 such child, was a Scotch or Irish subject 
 of Her JIajesty, or that any person whose 
 death is mentioned in such return was a 
 Scotch or Irisn subject of Her Majesty, 
 the Registrar-General of .Shipping and 
 Seamen shall from time to time send a 
 certified copy of so nuich of the i-cturn 
 as relates to such birth or death to the 
 Registrar-General of Births and Deaths 
 in Scotland or Ireland, as the case may 
 require. 
 
 (.5.) The Registrar-General of Shipping and 
 Seameii shall from time to time send to 
 the Registrar - General of Births and 
 Deatlis In England, a certified copy of 
 every other such return, or of that part 
 of every such return which is not so sent 
 to the Registrar-General of Births and 
 Deaths in Scotland or Ireland. 
 
 (ti.) A captain of, or other person having charge 
 of one of Her Majesty's ships shall upon 
 the arrival of any such ship in any port 
 of the United Kingdom, or at such other 
 time as the Commissioners of the Admi- 
 ralty may from time to time direct, 
 deliver, or send, in such manner and form 
 as the said Commissioners may from time 
 to time direct, a return of the facts re- 
 corded inj pursuance of this section to 
 that Registrar - General of Births .and 
 Deaths to whom a copy of such return 
 ■would, if the ship were a merchant ship, 
 be sent under the provisions of this sec- 
 tion by the Registrar-General of Shipping 
 and Seamen. 
 
 (7.) Evci-y Registrar -General of Birtlis and 
 Deatlis to whom a copy of any return or 
 a retiu'u is sent in pursuance of this sec- 
 tion, shall cause the same to be filed and 
 preserved in or copied in a book to be 
 kept by him for the puriwse, and to be 
 called a marine register bo<jk, and such 
 book shall be deemed to be a certified 
 copy of a register book within the mean- 
 ing of the Acts relating to the registra- 
 tion of births and deaths in England, 
 Scotland, and Ireland respectively. 
 
 (8.) EveiT captain, or master of, or otlier per- 
 son ha\ing charge of a ship who fails 
 to comply with this section shall be 
 liable to a penalty not exceeding £5 
 for each offence, and such penalty may 
 be recovered in the same courts and 
 places, and in the like manner, and when 
 recovered shall be applied in like manner, 
 as a penalty under the M. S. Act, 1864. 
 
 (9.) This section shall extend to all places and 
 jjersons within British jurisdiction. 
 
 (10.) 'Terms in this section shall have the same 
 meaning as in the M. S. Act, 1854. 
 
 («) FOURTH SCHEDULE. 
 
 Particulars to be Registered by Captain of a Ship 
 concerning a Birth at Sea. 
 
 D.ite of birth ■ • ■, , 
 
 Kauie (if any) and sex of the dnld . . .. ...... 
 
 Name and surname, and rank, profession, or occupation of the 
 
 father ,' • *, 
 
 Xame and surname and maiden surname of mother 
 Nationality and last place of abode of the father and mother . . 
 
 Particular^ to be Registered by 
 
 Captain of a Ship concerning 
 
 a Death at Sea. 
 
 Date of death. 
 
 Name and surname. 
 
 Sex. 
 
 Ago. 
 
 Rank, profession, or occupationi 
 
 Nationality and la.st place of iibodCi 
 
 Cause of death. 
 
 ib) Qaei7, saperintcndeEt of mercantile marine olticc j sec ante, p. 660, note.
 
 17 & 18 VICT. c. 104. 699 
 
 clicOi'ge of the crew, whichever tirst happens, deliver to the shipping master (c) 
 before whom the crew is discharged such list as herein-before required, and if he 
 fails so to do shall for every default incur a penalty not exceeding 5/. ; and 
 such shipping master (c) shall thereupon give to the master a certificate of such 
 delivery ; and no officer of customs shall clear inwards any foreign-going ship 
 without the production of such certificate, and any such officer may detain any 
 such ship until the same is produced. 
 
 275. The master or owner of every home-trade ship shall, within 21 days after Lists to be 
 the 30th day of June and the 31st day of December in every year, transmit or ^^jj^^gltradc^ 
 deliver to some shipping master (c) in the U. K. such list as herein-before required ships half- 
 for the preceding hall year, and shall in default incur a penalty not exceeding 51. ; yeaiij-. 
 and such shipping master (c) shall give to the master or owner a certificate of 
 
 such transmission or delivery ; and no ofiicer of citstoms shall grant a clearance or 
 transire for any home-trade ship without the production of such certificate, and 
 any such officer may detain any such ship until the same is produced, 
 
 276. If any ship ceases by reason of transfer of ownership or change of employ- Lists to be sent 
 ment to fall within the definition of a foreign-going or of a home-trade shij), the transfer of^sliip, 
 master or owner thereof shall, if such ship is then in the U. K., within one month, and in case of 
 and if she is elsewhere, within six months, deliver or transmit to the shipping lo^^- 
 master (c) at the port to which the ship has belonged such list as herein-before 
 mentioned, duly made out at the time at which she ceased to be a foreign-going 
 
 or home-trade ship, and in default shall for each oftence inciu' a penalty not exceed- 
 ing lOl. ; and if any ship is lost or abandoned, the master or owner thereof shaU, ■ 
 if practicable, and as soon as j)ossible, deliver or transmit to the shipping 
 master (c) at the port to which the ship belonged such list as herein-before men- 
 tioned duly made out to the time of such loss or abandonment, and in default 
 shall for each oftence incur a penalty not exceeding 10^. 
 
 277. AU shipping masters (r) and officers of customs shall take charge of all Certaiu^officcrs 
 dociunents Avhich are delivered or transmitted to or retained by them in piu-suance documents to 
 of this Act, and shall keep them for such time (if any) as may l>e necessary for registrar. 
 
 the purpose of settling any busmess arising at the place where such documents mifinj!pec*t?ou^'^^" 
 come into their hands, or for any other proper purpose, and shall, if requii-ed, pro- to produce 
 duce them for any of such purposes, and shall then transmit them to the registrar originals, and 
 general of seamen (d), to be by him recorded and preserved ; and the said registrar °'^^ *^°^' 
 shall, on payment of a moderate fee to be fixed by the Board of Trade, or without 
 payment of any fee if the Board of Trade so directs, allow any person to inspect 
 the same ; and in cases in wiiich the production of the original of any such docu- 
 ment in any coiut of justice or elsewhere is essential, shall produce the same, and 
 in other cases shall make and deliver to any person requiring it a certified copy of 
 any such document or of any part thereof ; and every copy purportmg to be so 
 made and certified shall be received in evidence, and shall have all the effect of 
 the origural of wliich it purports to be a copy. 
 
 278. The collector or compti'oUer of customs at every port in the U. K. shall, Officers of cus- 
 on or before the first day of February and the first day of August in every year, returns of ships 
 transmit to the registrar general of seamen (d) a list of all slups registered in such to registrar, 
 port, and also of all ships whose registers have been transferred or cancelled in 
 
 such port since the last precefling return. 
 
 279. The following riiles shall be observed Avith respect to the delivery of docu- Agreemeuts, iu- 
 ments to British consular officers ; (that is to say,) alsi.^mentsfou 
 
 (1.) Whenever any ship, in whatever part of H. M.'s dominions the same is arrival at a ' 
 
 registered (except sliips whose business for the time being is to carry fje'leposited' ^^ 
 passengers), arrives at any foreign port where there is a British consular with the consul, 
 officer, or at any port in any British possession abroad, and remains '^'^^'j '^\ '^ c^ony 
 thereat for 48 hom-s, the master shaU, within 48 hours of the J^f custonS'sr'^*^^^ 
 ship's arrival, deliver to stich consular officer, or to the chief officer of 
 customs (as the case may be), the agreement with the crew, and also all 
 indentm-es and assignments of aj)prenticeships, or, in the case of a ship 
 belonging to a British possession, such of the said documents as such ship 
 is provided with : 
 
 (c) Now superintendent of mercantile marine office ; 25 & 2(5 Vict. c. (J3, .'. 15, 
 ('./) Now rcgi%lrar-gcaeral of shipping aud seamen ; 35 & 36 Vict. c. 7, s. i.
 
 700 .Ar. s. ACT^ 1854, paet 3, 
 
 (2.) Such officer .shall keeji such documents diu-iug the ship's stay in f^uch port, 
 and in cases M'herc any indorsements ujion the agi-eement are hereby 
 requu-ed, shall duly make the same, and shall return the said documents 
 to the master a reasonable time before his departure, with a certificate 
 indorsed on the agreement, stating when the same were respectively 
 delivered and retiuned : 
 (3.) If it appears that the re(j[uii'ed fonns have been neglected, or that the 
 existing laws have b^en transgressed, such officer shall make an indorse- 
 ment to that effect on the agreement, and forthwith transmit a copy of 
 such indorsement, with the fullest information he can collect regarding 
 such neglect or transgression to the registrar general of seamen (a) : 
 And if any master fails to deliver any such document as aforesaid, lie shall for 
 every such default incur a penalty not exceeding 20/. ; and in any prosecution for 
 such penalty it shall lie u])on the master either to produce the certilicate of the 
 consuhir officer or officer of customs hereinbefore recpured, or to prove that he duly 
 obtained the same, or that it was impracticable for him so to do. 
 
 omalLoos. Official Locj,. 
 
 }^kcVm\oni. '^^^-^' ^^^^ Board of Trade shall sanction foi-ms of official log books, which may 
 ^anc■tionea by ' ^Je different for different classes of ships, so that each such form contains blanks 
 Board of Trailc. for the entries hereinafter requiied ; and an official log of everj' ship (except ships 
 employed exclusively in trading between ports on the coasts of the U. K.) shall 
 lie kejit in the appropriate sanctioned form ; and such official log may, at the 
 discretion of the Juaster or owner, either be kept distinct from the ordinary shiji's 
 log or united therewith, so that in all cases all the blanks in the official log be 
 duly tilled up. 
 Entries to be 281. Every entry in every official log shall be made as soon as possible after 
 
 ^de in due |j^^ occurrence to wliich it relates, and if not made on the same day as the occur- 
 rence to which it relates, shall be inade and dated so as to show the date of the 
 (jccurrence and of the entry respecting it ; and in no case shall any entry therein 
 in respect of any occurrence happening previously to tlie arrival of the sliip 
 at hei' final port oi discharge be made more than 24 hours after such anival. 
 Kilt ries required 282. Every master of a ship for which an official log-book is liereby required, 
 iu official log. f(]iall make or cause to be made therein entries of the following matters ; (that is 
 
 to say.) 
 Couviutions. (!•) Every legal conviction of any member of his cre^\-, and the punishment 
 
 inflicted : 
 Ofieuces. (2-) Every offence committed by any member of his crew for wliich it is 
 
 intended to prosecute, or to enforce a forfeiture, or to exact a fine, 
 together with such statement concerning the reading over such entry, 
 and concerning the reply (if any) made to the charge, as hereinbefore 
 required : 
 Puuishments. (3.) Every ott'ence for which punishment is inflicted on boai'd, and the punish- 
 
 ment inflicted : 
 Conduct, &c.; of (4.) A statement of the conduct, character, and qualifications of each of 
 cew. liis crew, or a statement that he declines to give an opinion on such 
 
 particulars : 
 Illnesses and (5.) Every case of illness or injuiy happening to any member of the crew, with 
 
 "^""'^** the natui'c thereof, and the medical treatment adopted (if any) : 
 
 (6.) [Repealed bv 37 & 38 Vict. c. 88, s. 54.] 
 (7.) [Repealed by 37 & 38 Vict. c. 88, s. 54.] 
 Staniagcs. (8.) Every marriage taking place on board, with the names and ages of the 
 
 parties : 
 Quitting ship. (9.) The name of every seaman or apprentice who ceases to be a member of 
 
 the crew, otherwise than by death, -with the place^ time, manner, and 
 cause thereof : 
 "Wages of men (10.) The amount of wages due to any seaman who enters her Majesty's service 
 cuicrins navy. during the voyage : 
 
 («) Now rcgislrar-geucral of shipping and scamcu ; sec 35 & 36 Victi c. 78; s. 4.
 
 1,7 & 18 YiCT. ('. 104. 701 
 
 (11.) The wages due to any seaman or apprentice who dies during the voyage, wagpsnf oo- 
 
 and the gross amount of all deductions to be made therefrom : ceased seamen. 
 
 (12.) The sale of the effects of any seaman or apprentice who dies during the Sale of deceased 
 voyage, including a statement of each article sold, and of the sum i^^en's efeects. 
 received for it : 
 (13.) Every collision with any other sliip, and the circumstances under which Collisions. 
 
 the same occurred. 
 283. The entries hereby required to be made in official log-books shall be ^°*?]f * '^°^ *° 
 signed as follows ; (that is to say), every such entry shall be signed by the master '^^'snec. 
 and by the mate or some other of the crew, and every entry of illness, injury, or 
 death shall be also signed by the surgeon or medical practitioner on boai'd (if any) ; 
 and every entry of wages due to or of the sale of the effects of any seaman or 
 apprentice who dies shall be signed by the master and by the mate and some other 
 member of the crew ; and every entry of wages due to any seaman who enters 
 H. M.'s service shall be signed by the master, and by the seaman, or by the officer 
 authorized to receive the seaman into such service. 
 
 ■284. The following offences in respect of official log-books shall be punishable Penalties inrc- 
 as heremafter mentioned ; (that is to say,) JP|^_* °^ °«^""' 
 
 (1.) If in any case an official leg-book is not kept in the manner hereby 
 required, or if any entry hereby directed to be made in any such log-book 
 is not made at the time and in the manner hereby directed, the master 
 shall for each such offence incur the sjiecific penalty herein mentioned in 
 respect thereof, or where there is no such specific penalty, a penalty not 
 exceetling 5/. 
 (2.) Every person who makes or procures to be made or assists in making any 
 entry in any official log-book in respect of any occurrence happening • 
 previously to the arrival of the ship at her final jDort of discharge more 
 than 24 hours after such arrival, shall for each such offence incur a 
 penalty not exceeding 'M. 
 (3.) Every person who wilfully destroys or mutilates or renders illegible any 
 entry in any official log-book, or who wilfully makes or procures to be 
 made or assists in making any false or fraudulent entry or omission in 
 any such log-book, shall for each such offence be deemed guilty of a 
 misdemeanor. 
 
 285. All entries made in any official log-book as hereinbefore directed shall be Entries in 
 received in evidence in any proceeding in any court of justice, subject to all just Iwei ved^ff evi-" 
 exceptions. denoe. 
 
 286. In the case of foreign-going ships the master shall within forty-eight liours Official logs to 
 after the ship's arrival at her final port of destination in the IT. K.,' or upon the bedeiivereti to 
 discharge of the crew, whichever first happens, deliver to the shipping master (b) of a mcrcantiTe' 
 before whom the crew is discharged the otticial log-book of the voyage ; and the marine office, 
 master or owner of every home-trade ship, not exclusively employed in trading 
 
 between ports on the coasts in the U. K., shall within 21 days after the 30th day 
 of June and the 31st day of December in every year transmit or deliver to some • 
 shipping master (6) in the U. K. the official log-book for the preceding half year ; 
 and every master or owner who refuses or neglects to deliver his official log-book 
 as hereby required, shall be subject to the same consequences and liabilities to 
 which he is hereby made subject for the non-delivery of the list of his crew 
 hereinbefore mentioned. 
 
 287. If any ship ceases by reason of transfer of ownersliip or change of employ- Official logs to 
 ment to fall within tlie definition of a foreign-going or of a home-tiade ship, the cnsf of mns'f er 
 master or owner thereof shall, if such ship is then in the U. K., within one cfsOiip. and h^ 
 month, and if she is elsewhere, within six months, deliver or transmit to the <'"'*°°^^°^'*- 
 shipping master (b) at the port to which the ship belonged, the official log-book (if 
 
 any) duly made out to the time at which she ceased to be a foreign-going or home- 
 trade ship, and in default shall for each offence incur a isenaltynot exceeding 10/. ; 
 and if any ship is lost or abandoned, the master or owner thereof shall, if prac- 
 ticable, and as soon as possible, deliver or transmit to the shipping master (b) at the 
 
 (6) Now a superintendent of a mei'cautile marine oifice, 25 &, 26 Vict. c. 63, s. 15, 2^08
 
 702 
 
 M. s. ACT, 1854, PAirr 4, 
 
 port to whicli the ship l)olonged the official log-book (if any) duly made out to the 
 time of such loss or abandonment, and in default shall for each otfeuce incur a 
 penalty not exceeding 10/. 
 
 East Indies and 
 Colonies. 
 
 Provisions of 
 Act. as applied 
 by Bast ludiau 
 and colonial 
 governments to 
 Their own ships, 
 may be enforced 
 thnaighout the 
 empire. 
 
 East Indian and 
 colonial acts to 
 bo subject to dis- 
 allowance, and 
 I'ofiuire sanction 
 as in other cases. 
 
 Conflict of laws. 
 
 East Indies and Colonies. 
 
 288. If the governor-general of India in council, or the respective legislative 
 authorities in any British possession abroad, by any acts, ordinances, or other ■ 
 appropriate legal 'means, apply or adapt any of the pro\'isions in the third part of 
 this Act contained to ary British ships registered at, trading with, or being at any 
 place -svithin their resjiective jurisdictions, and to the owners, masters, mates, and 
 crews thereof, such provisions, when so applied and adapted as aforesaid, and as 
 long as they remain in force, shall in respect of the ships and persons to which 
 the same are applied be enforced, and penalties and punishments for the breach 
 thereof shall be recovered and inflicted, tliroughout H. M.'s dominions, in the 
 same manner as if such provisions had been hereby so adopted and applied, and 
 such penalties and punishments had been hereby expressly imposed. 
 
 289. Every act, ordinance, or other form of law to be passed or promulgated by 
 the governor-general of India in council, or by any other legislative authority, in 
 pursuance of this Act, shall respectively be subject to the same right of disallow- 
 ance or repeal, and require the same sanction or other acts and formalities, and be 
 subject to the same conditions in all respects as exist and are required in order to 
 the validity of any other Act, ordinance, or other form of law passed by such 
 governor-general in council or other legislative authority respectively. 
 
 290. If' in any matter relating to any ship, or to any person belonging to any 
 ship, there appears to be a conflict of laws, then, if there is in the third part of 
 this Act any provision on tlie subject which is hereby expressly made to extend 
 to such ship, the case shall be governed by such pro\ision, and if there is no such 
 provision the case shall be governed by the law of the place in which such sliip is 
 registered. 
 
 PART IV. 
 
 SAFETY AND PREVENTION OF ACCIDENTS. 
 
 Application. 
 AlJplication. 
 Application of 291. The fourth part of this Act .shall apply to all British ships ; and all foreign 
 Part IV. of Act. steamships carrying passengers between places in the U. K. shall be subject to all 
 the provisions contained in the fourth part of this Act, and like^\•ise to the same 
 provisions with respect to the certificates of the masters and mates thereof to wliich 
 British steamships are stibject. 
 
 Boats for Sea-qoing Ships, 
 Boats for Sea- •' » ^ r 
 
 going Ships. 
 
 „ , — ^ ^ -iQ--) The following rules shall be observed with respect to boats and life buoys ; 
 
 Rules as to boats ,"' .' ^'^^ o ^ 
 
 and life (that IS to say,) 
 
 buoys (a). /j .) No decked ship (except ships used solely as steam tugs and .shij)s engaged 
 
 in the whale fishery) .shall proceed to sea from any place in the U. K., 
 unless she is proA-ided, according to her tonnage, with boats duly .sup- 
 
 (a) See 36 & 37 Vict, c, 85, s. 15. post.
 
 17 i% 18 VICT. 0. 104. 703 
 
 plied -svith all rGCiuisites for use, and not being fewer in number nor les>< 
 in their cubic contents than the boats the number and cubic contents of 
 Avhich are specified in the table marked S. in the schedule hereto for the 
 class to which such ship belongs : 
 (2.) No ship carrying more than ten passengers shall proceed to sea from any 
 place in the U. K., unless, in addition to the boats hereinbefore required, 
 she is also provided with a life-boat furnished with all requisites for use, 
 or unless one of her boats herein-before required is rendered buoyant 
 after the manner of a life-boat : 
 (3.) No such ship as last aforesaid shall proceed to sea unless she is also pro- 
 vided with two Ufe-buoys : 
 And such boats and life buoys shall be kej)t so as to be at all times fit and 
 ready for use : Provided, that the enactments with respect to boats and life buoys 
 herein contained shall not apply in any case in whicli a certificate has been duly 
 obtained under the tenth section of the " Passengers' Act, 1852" (6). 
 
 293. In any of the following cases, (that is to say,) Penalties on 
 (1,) If any ship herein-before required to be provided with boats or life buoys masters and 
 
 proceeds to sea without being so provided therewith, or if any of such neglecting to 
 
 boats or life buoys are lost or rendered unfit for ser-\dce in the course of provide boats 
 
 the voyage through the wilful fault or negligence of the owner or j^°oyf /(.) 
 
 master, or 
 (2.) If, in case of any of such boats or life buoys being accidentally lost or 
 
 injured in the course of the voyage, the master wilfully neglects to 
 
 replace or repair the same on the first opportunity ; or 
 (3.) If such boats and life buoys are not kept so as to be at all times fit and 
 
 ready for use : 
 Then if the owner appears to be in fault he shall incur a penalty not exceeding 
 100?., and if the master appears to be in fault he shall incur a penalty not 
 exceeding 50/. 
 
 294. No officer of customs shall gi'ant a clearance or transire for any ship herein- OfQcers of cus- 
 before required to be provided with boats or with life buoys, unless the same is ^?!^^^ "ot com^''^ 
 duly so provided ; and if any such ship attempts to go to sea without such clear- plying with the 
 ance or transire any such officer may detain her until she is so provided. above provisions. 
 
 Lights and Fog Signals, and Meeting and Passing. 
 
 Rules as to 
 . , . -1 -■ 1 n -TT Lights, and 
 
 [295 to 300 inclusive are repealed by 25 & 26 Vict. c. 63, s. 2, post. ; see ss. 25 to meeting and 
 30 of this last-mentioned Act, 2^ost ; and table C. to tliis Act, post, 36 & 37 Vict. pa^o- 
 c. 85, ss. 16, 17, i)ost ; 39 & 40 Vict. c. 80, s. 14.] 
 
 301. Steam ships shall be provided as follows ; (that is to say,) 
 
 (1.) Every steam ship of which a survey is hereby required shall be provided ^'i"'i''^,™* "* 
 with a safety valve upon each boiler, so constructed as to be out of the saTe"y Valve, 
 control of the engineer when the steam is up, and, if such valve is in 
 addition to the ordinary valve, it shall lie so constructed as to have an 
 area not less and a pressure not greater than the area of and pressure on 
 that valve : 
 
 (2.) Every sea-going steam sliip employed to carry passengers shall have her Compasses to be 
 compasses properly adjusted from time to time ; such adjustment, in the ^'^J"**^*^^* 
 case of ships surveyed as herein-after mentioned, to be made to the satis- 
 faction of the sliipwi'ight surveyor and according to such regulations as 
 may be issued by the Board of Trade : 
 
 (3.) Every sea-going steam ship (unless used solely as a steam tug) shall be P"'°ii°se. 
 provided with a hose adapted for the purpose of extinguishing fire in any 
 part of the ship, and capable of being connected mth the engines of tlie 
 ship : 
 
 (4.) [Eepealed by 39 & 40 Vict. c. 80, s. 45.] 
 
 (5.; Every home-trade steam ship employed to carry passengers by sea shall be ^^'i^ltcr for deck 
 provided witli such shelter for the protection of deck passengers (if any) p*^''*^^^^'"^- 
 
 (&) This Act is now repealed ; see Passengers Act, 1876, 18 & 19 ViCt. c. 119. s. 27. 
 ic) See 36 & 37 Vict. c. 85, s. 15, iwst.
 
 704 yi. s. ACT, 1854, PAKT 4, 
 
 ns the Eoavil of Trade, liaving regard to tlie nature of the passage, the 
 lunaber of deck passengers to be carried, the season of the year, the 
 safety of the ship, and the circumstances of the case, may require : 
 And if any steam ship as aforesaid plies or goes to sea from any port in the 
 U. K. without being so provided as lierein-before required, tlien for each default 
 in any of the above requisites the owner shall (if he appears to be in fault) incur 
 a penalty not exceeding 100/., and the master shall (if he appears to be in fault) 
 incur a penalty not exceeding 50/. 
 Peualtv for im- 3'^^2. If any peison jih^c^'' ai^ undue weight on the safety A'alve of any steam 
 proper weight on .shi]), or, in the case of steam ships siirveyed as hereinafter mentioned, increases 
 safety valve. such weight beyond the limits fixed by such engineer surveyor as lierein-after 
 mentioned, he shall, in addition to any other liabilities he may incur by so doing, 
 incur a penalty not exceeding 100/. 
 
 Survey of Survey of Passenc/cr Steamas. 
 
 Pas.ieiigfi' 
 !^t earners. 
 
 Dofinitionof pa?- 303. For the piu'pose of the enactments herein contained with respect to sui-veys 
 .scnjror .«teamcrs. ^^^^ certificates of passenger steam ships, the word " Passengers" shall be held to 
 include any persons carried in a steam ship, other than the master and crew and 
 the oAvner, his family and servants ; and the expression " Passenger Steamer" 
 shall be held to iuclutle every British steam ship carrying passengers to, from, or 
 between any place or places in the U. K,, excepting steam ferry boats working in 
 chains, commonly called steam bridges. 
 
 304. [Eepealed by 35 & 36 Vict. c. 73, s. 8, 2}ost ; see s. 13, 2}0st.] 
 Board of Trade 305. The Board of Trade may from time to time appoint such number of fit 
 to appoint siir- jj^j^^j pjoptr persons to be shipwright surveyors and engineer surveyors for the 
 tiieiTremtmera- purposes of this Act at such ports or places as it thinks proper, aud may also 
 tion. appoint a surveyor general for the U. K., and may from time to time remove such 
 
 surveyors or any of them, and may from time to time fix and alter the rates of 
 remuneration to be received by such siu-veyors. 
 Surveyors to 306. It shall be laAvful for the said surveyors, in the execution of their duties, 
 
 have power to ^q „q qj^ board any steam ship at all reasonable times, and to inspect the same or 
 inspect. ^^^^ ^^^^,^ thereof, or any of the machinery, boats, equipments, or articles on board 
 
 thereof, or any certificates of the master or mate, to which the provisions of this 
 Act or any of the regulations to be made by ^•il■tue thereof apply, not unneces- 
 sarily detaining or delaying the ship from proceeding on any voyage, and, if in 
 consecj^uence of any accident to any such ship or for any other reason they con- 
 sider it necessary so to do, to rec|uire the ship to be taken into dock for the 
 purpose of .surveying the hull tliereof ; and any person who hinders any sucli 
 surveyor from going on board any such steam ship, or otherwise impedes him in 
 the execution of his duty under this Act, shall incur a penalty not exceeding 5/. 
 Board of Trade 307. The said sur\'eyors shall execute their duties under the direction of the 
 to regulate mode Board of Trade, and such board shall make regulations as to the manner in which 
 ve^"'^°" *"'* tlie surveys herein-after mentioned shall be made, and as to the notice to be given 
 to the surveyors when sm'veys are required, and as to the amount and payment of 
 anv travellin," or other expenses incurred by such surveyors in the execution of 
 their duties, and may thereby determine the persons by whom, and the conditions 
 under Avhich such payment shall be made. 
 Penalty on sur- 308. Every surveyor who demands or receives, directly or indirectly, from the 
 veyors receiving owner or master of any ship surveyed by him under the provisions of this Act, 
 fees ituiawfuiiy. ^^^^^ ^.^^ ^^, remuneration whatsoever, for or in respect of such survey, otherwise 
 than as the officer and by the direction of the Board of Trade, shall inciu' a 
 penalty not exceeding 50/. 
 Owners to have 309." The owner of every passenger steamer shall cause the same to be surveyed, 
 surs-ey.s made by at the times herein-after clirected, by one of the said shipwright sur^^eyors and by 
 shipwright and ^^^^ ^^ ^-y^^ ^^^ engineer surveyors so appointed as aforesaid ; such shipwright 
 voyorsl^andVur- surveyor being, in the case of iron steamers, a person Avho is in tlie judgment of 
 veyors to give i]^q Board of Trade properly qualified to survey such ships : and such surveyors 
 aeclaratious. i t. j i " x
 
 17 & 18 VICT. c. 104. 705 
 
 shall thereupon, if satisfied that they cau with propriety do so, give to such owner 
 declarations as follows : 
 
 The declaration of the shipwright surveyor shall contain statements of the 
 following particulars ; (that is to say,) 
 
 (1.) That the hull of the ship is sufficient for the service intended, and in good 
 
 condition : 
 (2.) That the partitions, boats, life buoys, lights, signals, compasses, and shelter 
 for deck passengers, and the certificates of the master and mate or mates 
 are such, and in such condition, as required by this Act : 
 (3.) The time (if less than six months) for which the said hull and equipments 
 
 will be sufficient : 
 (4.) The limits (if any) beyond which, as regards the hull and equipments, the 
 
 ship is, in the surveyor's judgment, not fit to jjly : 
 (5.) The number of passengers which the ship is in the judgment of the surveyor 
 fit to carry, distinguisliing, if necessary, between the respective numbers 
 to be carried on the deck and in the cabins, and in dift'erent parts of the 
 deck and cabins ; such numbers to be subject to such conditions and 
 variations, according to tlie time of year, the nature of the voyage, the 
 cargo carried, or other circumstances, as the case requires : 
 And the declaration of the engineer surveyor shall contain statements of the 
 following particulars ; (that is to say,) 
 
 (1.) That the machinery of the ship is sufficient for the service intended, and in 
 
 good condition : 
 (2.) The time (if less than six months) for which such machinery will be 
 
 sufficient : 
 (3.) That the safety valves and fire hose are such, and in such condition, as are 
 
 required by this Act : 
 (4.) The limits of the weight to be placed on the safety valves : 
 (5.) The limits (if any) beyond which, as regards the machinery, the ship is, in 
 the surveyor's judgment, not fit to ply : 
 And such declarations shall be in such form as the Board of Trade directs, (a) 
 
 310. The said owner shall transmit such declarations to the Board of Trade, Jj^j^j.^t^ons'to^ 
 Avithin 14 days alter the dates of the receipt thereof respectively ; and, in Board'of*Tnvde. 
 default, shall forfeit a sum not exceeding 10s., for every day that the Penalty for 
 sending of such declarations is delayed ; and such sum shall be paid upon the '^*^'^'^* 
 delivery of the certificate hereinafter mentioned, in addition to the fee payable for 
 
 the same, and shall be applied in the same manner as such fees. 
 
 311. In all cases, where it is possible, the said half-yearly surveys shall be Timef? appointed 
 made in the months of April and of October, (5) and the declarations shall be trans- transmiSoif of 
 mitted on or before the 30th day of April and the 31st day of October respectively : declarations. (6) 
 but if the owner of any passenger steamer is unable to have the same surveyed in 
 
 the month of April or October (as the case may be), either by reason of such ship 
 being absent from the U. K. during the whole of those periods respec- 
 tively, or by reason of such ship or the machinery thereof being under construction 
 or repair, or of such ship being laid up in dock, or for any other reason satisfactory 
 to the Board of Trade, then he shall have the same surveyed as aforesaid as soon 
 thereafter as possible, and shall transmit such declarations to the Board of Trade 
 within 14 days after the receipt thereof, together -with a statement of the reasons 
 which have prevented the survey of such ship at the time hereinbefore prescribed, 
 and shall, in case of delay in transmitting the declarations, be liable to a forfeiture 
 siuiilar to that mentioned in the last preceding section. 
 
 312. Upon the receipt of such declarations the Board of Trade shall, if satisfied Board of Trade 
 that the provisions of the fourth part of this Act have been complied with, cause cateric)'^^'^'^* 
 a certificate in duplicate to be prepared and issued, to the eft'ect that the pro- 
 visions of the law Avith respect to the survey of the sliijj and the transmission of 
 declarations in respect thereof have been complied with ; and such certificate 
 
 shall state the limits (if any) beyond which, according to the declaration of the 
 surveyors such ship is not fit to ply, and shall also contain a statement of the 
 
 (ft) See 25 & 26 Vict. c. 63, s. 12, 2^ost : and see (b) See 26 & 26 Vict. c. 63, s. 3i,pnst. 
 
 39 & 40 Vict. c. 80, s. 14, post, as to appeal in (c) See 39 & 40 Vict. c. 80, ss. 16, 18, relating to 
 
 certain cases. passenger steamers, po.st. As to a)ipcal in certain 
 
 cases sec s. 14 of this Act, 
 2 ?,
 
 706 
 
 M. S. APT, 1854, PAKT 4, 
 
 Issue and trans- 
 mission of ceiti- 
 flcates. 
 
 Fpcs to be paul 
 for ccitifieatcs. 
 
 How long cert i- 
 lirates to con- 
 tinue in force. 
 
 Board of Trade 
 may cancel cer- 
 tificates, and 
 require fi"esh 
 declarations. 
 
 Copy of cer- 
 tificate to be 
 placed in 
 conspicuous 
 part of ship. 
 
 number of passenger.;; wliicli, according to the declaration of tlic sliip-wright sur- 
 veyor, .such ship is fit to carry, distinguishing (if necessary) hetn'een the respective 
 numbers to bo carried on the deck and in the caliins, and in different parts of the 
 deck and cabins, such ntmiber to be subject to such conditions and variations, 
 according to the time of year, the nature of the voyage, the cargo caiTied, and 
 other circumstances, as the case require.s. 
 
 313. The Board of Trade shall transmit .such duplicate certificate to the 
 shipi)iug master, (a) or to some other public officer at such port as the OA\Tier 
 may mention for the purpose, or at the port where the owner or his agent resides, 
 or where the ship was surveyed and is for the time being lying, and shall cause 
 notice of such transmission to be given, by post or otherwise, to the master or 
 owner or his agent ; and the said shipping master («) or officer .shall deliver such 
 duplicate certificate to the said owner, master, or agent, on his apphdng and 
 paying the fees and other .sums (if any) herein mentidned as payable in that 
 behalf ; and in proviug the due issue and transmission to the owner, agent, or 
 master of .such certificate, it shall be sufficient to show that the .same has been 
 duly received by such shipping master (a) or public officer as aforesaid, and that 
 due notice of the transmission thereof to sitch shipping master {a) or officer has 
 been given to snch o^vner, ma.ster, or agent. 
 
 314. The oAMier of every passenger steamer rerpiiring a certificate, imder the 
 fourth part of this Act, shall pay for every certificate granted by the Board of 
 Trade such fees as such board directs, not exceeding the fees mentioned in the 
 table marked T. in the schedule hereto. 
 
 315. No certificate shall be held to be in force for the purposes of the fourth 
 part of tliis Act beyond the date fixed by the Board of Trade for the expiration 
 thereof ; and no certificate shall be in force after notice is given by the Board of 
 Trade to the owner, agent, or master of the ship to which the same relates, that 
 such board has cancelled or revoked the same ; provided that, if any passenger 
 steamer is absent from the V. K. at the time when her certificate expires, no 
 penalty shall be incurred iVu' the want of a certificate until she first begins to ply 
 Avith passengers after her next subsequent return to the U. K. ; and the Board of 
 Trade may recptire any certificate Avhich has exj^ired, or has been revoked or 
 cancelled, to be delivered up as it directs ; and any o-mier or master who, without 
 reasonable cause, neglects or refuses to comply with such requirement, shall incur 
 a penalty not exceeding 10/. 
 
 316. The Board of Trade may revoke and cancel such certificates, in any case 
 in which it has reason to believe, — 
 
 (1.) That the declarations of the sufficiency and good condition of the hull, 
 
 equipments, and machinery of any passenger steamer, or either of them, 
 
 have been fraudulently or eiToneously made j or 
 (2.) That .such certificate has otherwise been issued upon fal.se or erroneous 
 
 information ; or, 
 (3.) That since the making of such declarations the hull, equipments, or 
 
 machinery ot such ship have sustained any injury, or are otherwise 
 
 insufficient : 
 
 And in every such case the Board of Trade may, if it tliinks fit, recpiire the owner 
 to have the hull, ecpiipments, or machinery of such ship again surveyed, and 
 to ti'ansmit a further declaration or declarations of the sufficiency and good 
 condition thereof, before re-issuing any certificate or gn-anting a fresh one in lieu 
 thereof 
 
 317. The owner or master of every passenger steamer shall forthwith, on the 
 transmission of any such certificate as aforesaid to liim or his agent, cause one of 
 the duplicates thereof so transmitted to be put up in some conspicuous part of the 
 .ship, so as to be visible to all persons on board the same, and shall cause it to be 
 continued so put up so long as such certificate remains in force and such ship is in 
 use ; and in default such owner or master shall, for every oftence, incur a penalty 
 not exceeding 10/. 
 
 (f) Now superintendent of mercantile marine oflBce ; see 25 & 26 Vict. c. 63, s. 16.
 
 17 & 18 VICT. V. 104. 707 
 
 318. It shall not be lawful (b) for any passenger steamer to proceed to sea, or Shipiim to 
 upon any voyage or excursion with any passengers on board, unless the owner {ipil''yoTa''"G 
 thereof lias transmitted (( ) to the Board of Trade the declarations hereinbefore witliout " 
 required, nor unless the ownier or master thereof has received from such board such certificate, 
 a certificate as hereinbefore provided for, such certificate being a certificate applic- 
 able to the voyage or excursion on which such ship is about to proceed ; and no 
 officer of customs shall grant any clearance or transire for any passenger steamer 
 unless upon the production of such certificate as aforesaid (being a certificate then 
 in force and applicable as aforesaid) ; and if any passenger steamer attempts to ply 
 or go to sea without such production, any such ofiicer may detain her until sucii 
 certificate is produced ; and if any passenger steamer plies or g-oes to sea A\ith any 
 passengers on board, without having one of the duplicates of such certificate as 
 aforesaid (being a certificate then in force, and applicable as aforesaid) so put up 
 as aforesaid in some conspicuous part of the ship, the owner thereof shall for such 
 offence incur a penalty not exceeding lOOZ., and the master of such sliip shall 
 also incur a further penalty not exceeding 20?. 
 
 319. If the owner or master or other person in charge of any passenger steamer Penalty for 
 receives on board thereof, or on or in any part thereof, or if such ship has on sengerMif '^" 
 board thereof, or on or in any part thereof, any number of passengers which, hav- excess of 
 ing regard to the time, occasion, and circumstances of the case, is gi'eater than the f^^'^^^ ^ 
 number of passengers allowed by the certificate, the owner or master shall incur a ceitiflcate. 
 penalty not exceeding 201., and also an additional penalty not exceeding 5s. 
 
 for every passenger over and above the number allowed by the certificate, 
 or, if the fare of any of the passengers on board exceeds 5s., not exceed- 
 ing double the amount of the fares of all the passengers who are over and above 
 the number so allowed as aforesaid, such fares to be estimated at the highest rate 
 of fare payable by any passenger on board. 
 
 320. Every person who kno^\^.ngly and wilfully makes or assists in making, or Forgery of 
 procures to be made, a false or fraudulent declaration or certificate with respect to or'e^e"tmaite 
 any passenger steamer rerpiiiing a certificate under the fourth part of this Act, or a misdemeanor, 
 who forges, assists in forging, or prociu'es to be forged, fraudulently alters, assists 
 
 in fraudulently altering, or procures to be fraudulently altered, any declaration or 
 certificate rec^uii'ed hy the fourth part of this Act, or any words or figures in any 
 such declaration or certificate, or any signature thereto, shall be deemed guilty of 
 a misdemeanor. 
 
 321. The said surveyors shall, from time to time, make such returns to the Sun-eyors 
 Board of Trade as it requires with respect to the build, dimensions, drauglit, j.et"',"ns*' ^f 
 burden, rate of sailing, room for fuel, and the nature and particulars of machinery the build 
 and equipments of the ships surveyed by them ; and every owner, master, and '^^"^l^"'^''/'*'.^ 
 engineer of any such ship shall, on demand, give to such surveyors all such infor- oflteaiu ships, 
 niation and assistance within his power as they require for the purpose of such and owners 
 returns ; and every such owner, master, or engineer, who, on being applied to for to aive^infM-. 
 that purpose, wilfully refuses or neglects to give such information or assistance mation for 
 shall be liable to a penalty not exceeding 5/. that purpose. 
 
 Miscoiuhid by Passengers in Steamers. Mi<iconchict hii 
 
 Passevr/ers in 
 tStcamerg, 
 322. The following offenders, that is to say, - — 
 
 (1.) Any 'person who, after having been refused admission into any steamer by the on pcn^om 
 oimer or -person in charge thereof, or by any person in the employ of the forcing way 
 owner thereof, on account of such steanier being full, and after having had °^ '^°''^'"' 
 the full amount of his fare (if he has paid the same) returned or tendered to 
 him, nevertheless persists in attempting to enter the same ; and 
 (2.) Anyp)erson having got on board any steamer, who, upon being rerjvxsfed on the ^^^y^lli'f^^'^ 
 
 (h) Sec Dudgeon v. rcmhroUe, 43 L. J. Q. B. (-■) The 39 &40 Vict. c. 80. ^wsf, repeals so much 
 
 02(1 of this section as requires the o-mier of a ship to 
 
 tran-mit the declarations therein mentiuned, 
 ? Z 2
 
 708 
 
 :m. s. act, 1854, pam 4, 
 
 Penalty for 
 avoiding 
 payment of 
 fares. 
 
 Penalty on 
 persons refus- 
 ing to give 
 their name 
 and address. 
 
 Power to 
 i-efuse or 
 ]-emove pas- 
 sengere wlio 
 are drunk or 
 misconduct 
 themselves. 
 
 Hie account by the owner or -person in chanje thereof, or hj any 'person in the 
 employ of the ov:ner, to leave auch steamer hfore the same has quitted the 
 place at which such person got on hoard, and upon having the full amount 
 of his fare (if he has paid the same) returned or tendered to him, refuses to 
 comply u-ith such request ; 
 
 Shall for each such offence incur a penalty not exceeding 40s., t6'he[paid to the 
 
 said oimier (a). 
 
 323. TliefoUomng offenders, that is to secy, 
 
 (1.) Any 2}erson iclio travels or attemp)ts to travel in any ixissenger steamer which 
 has been duly surveyed in conformity with the provisions of this Act, with- 
 out having 2)')'eviously paid his fare, and with intent to avoid payment 
 thereof; and 
 (2.) Any peison who, having paid his fare for a certain distance, hnounngly and 
 icilfully proceeds in any such steamer beyond siich distance, without jyre- 
 viously p>ciying the additional fare for the additional distance, and with 
 intent to avoid payment thereof ; and 
 (3.) Any p)erson who hnovnngly and wilfully refuses or neglects, on arriving at the 
 point to which he has paid his fare, to quit any such steamer; 
 Shall for every such offence incur a penalty not exceeding 5s., in addition to 
 the fare pcnjMe by him, such penalty to be paijable to the oumer of such 
 steamer (a). 
 
 324. Every person avIio, lia-^'ing coniniitted any of tlie offences mentioned in the 
 t-n'o last preceding sections or either of them, refuses on application of the master 
 of the ship or of any other person in the employ of the owner thereof to give his 
 name and address, or who on such application gives a false name or address, shall 
 incur a penalty not exceeding 20^., to be paid to the said 0A\mer. 
 
 325. The master of any home-trade passenger steam ship may refuse to receive 
 on board thereof any person who by reason of drimkenness or otherwise is in such 
 a state, or misconducts himself in such a manner as to cause annoyance to other 
 passengers on board, or if such person is on board, may jjut him on shore at any 
 convenient place : and no person so refused admittance or put on shore shall be 
 entitled to the return of any fare he may have paid. 
 
 Accidents. 
 
 Accidents to 
 steam ships 
 to be reported 
 to Board of 
 Trade. 
 
 Collisions to 
 be entered 
 in official 
 log. 
 
 Accidents. 
 
 326. Whenever any steam ship has sustained or caused any accident occasion- 
 ing loss of life or any serious injury to any person, or has received any material 
 damage affecting her seaworthiness or her etticiency either in her hull or in any 
 l^art of her machinery, the o-\\nier or master shall, within 24 hom\s after the 
 happening of such accitlent or damage, or as soon thereafter as possible, send to 
 the Board of Trade, by letter signed by such owner or master, a report of such 
 accident or damage, and of the probable occasion thereof, stating the name of the 
 ship, the port to which she belongs, and the place where she is ; and if such 
 ©■mier or master neglect so to do, he shall for such offence incur a penalty not 
 exceeding 50/. 
 
 327. [Repealed by 36 & 37 Vict. c. 85, s. 33 ; see sects. 22—28, of this Act, post.] 
 
 328. In every case of collision, in which it is practicable so to do, the master 
 shall immediately after the occurrence cause a statement thereof, and of the cir- 
 cumstances under which the same occurred, to be entered in the official log-book 
 (if any) ; such entry to be signed by the master, and also by the mate or one of 
 the crew, and in default shall incur a penalty not exceeding 20^ 
 
 Carrying dangerous Goods. 
 
 329. [Repealed by 36 & 37 Vict. c. 85, s. 33 ; see s. 23, and subsequent sections 
 of this A ct, 2>ost. 
 
 {a) This section is repealed by 25 & 20 Vict, c, 63, s. i.jwst ; see sects. 35- 37 of this Act,
 
 17 & 18 VICT. c. 104. 709 
 
 PART V. 
 
 PILOTAGE. 
 
 Application. AjnyHcation. 
 
 330. The fifth part of this Act shall apply to the U. K. only. of Part v. 
 
 of Act. 
 Powers of PilotcKjc Authorities {General). Powers of 
 
 1 tlOtClf^G 
 
 Authorities 
 
 331. Every pilotage authority shall retain all powers and jurisdiction which it (General). 
 now lawfully possesses, so far as the same are consistent with the provisions of (jenerai 
 tins Act ; but no law relating to such authority, or to the pilots licensed by it, jurisdiction 
 and no act done by such authority, shall, if inconsistent with any provision of °u^^o°.Jt|s. 
 tliis Act, be of any force whatever. 
 
 332. Every pilotage authority shall have power, by bye-law made with the consent Power of 
 of H. M. m council, to exempt the masters of any ships, or of any classes ^"It^j^Q^ftje^ 
 of ships, from being compelled to employ qualified pilots, and to annex any terms to make 
 or conditions to such exemptions, and to revise and extend any exemptions now a"d extend 
 existing by virtue of this Act or any other Act of parliament, law, or charter, or by from compul- 
 usage, upon such terms and conditions and in such manner as may appear desir- scry pilotage 
 able to such authority. 
 
 333. Subject to the provisions contained in the fifth part of this Act, it shall be Powers of 
 lawful for every pilotage authority, by bye-law made with the consent of H. M. in P"^PjJ''°.° . ... 
 council, from time to time to do all or any of the follo^ving things within its '^" 
 districts ; (that is to say,) 
 
 (1.) To determine the qualifications to be required from persons applying to be To deteruiiue 
 licensed as pUots, whether in respect of theii- age, skill, time of service, o^pnots^^*^'^'^ 
 character, or otherwise : 
 
 (2.) To make regulations as to the approval and licensing of pilot boats and To make 
 ships, with power to establish and regulate companies for the support of ^^^t^/pUo^^ 
 such boats and ships, and for a participation in the profits made thereby; boats : 
 the companies so established to be exempt from the provisions of the 
 Act passed in the session holden in the 7th and 8th years of the reign of 
 her present Majesty, chapter 110, intituled "An Act for the Registra- 
 tion, Incorporation, and Regidation of Joint Stock Companies :" 
 
 (3.) To make regulations for the govermnent of the pilots licensed by them, and To make 
 for insuring their good conduct, and their constant attendance to and regulations 
 eft'ectual performance of their duty either at sea or on shore : ^ove^^rnmeuL 
 
 (4.) To fix the terms and conditions of granting licences to pilots and appren- of pilots : 
 tices, and of granting such pilotage certificates as hereuiafter mentioned To rmikc 
 to masters and mates, and to make regulations for punishing any breach i-egiUatious 
 of such regulations as aforesaid committed by such pilots or apprentices and'certm-*^'^ 
 or by such master and mates by the withdrawal or suspension of their cates : 
 licences or certificates, as the case may be, or by the infliction of penalties 
 to be recoverable summarily before two justices, so that no such penalty 
 be made to exceed the stim of 20/., and so that every sucli penalty be 
 capable of reduction, at the discretion of the justices by whom the same 
 is inflicted : 
 
 (5.) To fix the rates and prices or other remuneration to be demanded and To alter and 
 received for the time being by pilots licensed by such authority, or to of'piiotageT 
 alter the mode of remunerating such pilots, in sucli manner as such 
 authority may, with such consent as aforesaid, think fit, so that no 
 
 {h) Sec 2-3 &, 26 Vict. c. 63: ^^^ 30, •lo. post.
 
 710 
 
 31. S. ACT, 1854, TART 5, 
 
 To arrange 
 ilic limits 
 <if jijloiago 
 ilislricls 
 
 To establibh 
 funds for 
 MiperannuaUHl 
 
 pilots : 
 
 To alter bye- 
 laws. 
 
 Publication of 
 bye-lawf. 
 
 Bye-laws to 
 be laid before 
 parliament. 
 
 Power of appeal 
 to Board of 
 Trade. 
 
 higher rates or prices be demanded or received liuiu the masters or 
 owners of shij^s, in the case of the Trinity House, than the rates aiul 
 prices specified in the tahk> marked U, in the schedide hereto ; and in 
 the case of all other ])ilotage authorities, than the rates and prices which 
 might have been laAvl'uUy fixed or demanded by such pilotage anthorities 
 respectively under any Act of parliament, charter, or custom in force 
 immediately before the conmiencement of this Act : 
 (6.) Tomakesucli arrangements with any other pilotage authority for altering 
 the limits of their respective districts, and for extending the powers (jf 
 such other authority or the privileges of the pilots licensed by such other 
 authority or any of them to all or anj* part of its own district, ov for 
 limiting its own powers or the privileges of its own pilots or any of 
 them, or lor sharing the s;ud last-mentioned j^oMers and privileges with 
 tlie said other authority and the pilots licensed by it, or for delegating or 
 surrendering such powers and piivileges or any of them to any other 
 pilotage authoiity either already constituted or to be constituted Ijy agree- 
 ment between sucii authorities, and to the pilots licensed by it, as may 
 appear to such ])ilotage authorities to be desirable for the purpose of laci- 
 litating navigation or of reducing charges on shijiping : 
 (7.) To establish, either alone or in conjunction A^th any other pilotage 
 authority or authorities, fimds for the relief of sitperannuated or infu-ni 
 (pialitied pilots, or of their -wt-VCS, ■\\ddows, (jr children, or to make au)^ new 
 regulations with respect to any funds already applicable to the above 
 piu'poses or any of them, with power to determine the amount, manner, 
 tune, and persons (such persons to be in the service of sucli pilotage 
 autliority) to and in which and by and upon whom the contributions in 
 support of such existing or futm'e funds may be made or levied ; and 
 fiu'ther to declare the persons or class of persons (such jjersons or class of 
 ])ersons being confinecl to men in the ser^dce of such pilotage authoritj^, 
 their A^dves, Avidows, or children) entitled to participate in the benefits of 
 such existing or future funds, and the terms and conditions upon which 
 they are to be so entitled : 
 (8.) To repeal or alter any bj^e-law made in the exercise of the above powers, 
 and to make a neA\' l)ye-law or new bye-laws in lieu thereof : 
 And every l)ye-law duly made by any pilotage authority in exercise of the powers 
 hereby given to it, shall be valid and etfectual, notwithstanding any Act of parlia- 
 ment, rule, law, or custom to the contrary. 
 
 334. Every bye-law proposed to be enacted by any pilotage authority in pur- 
 suance of the foregomg powers shall, Ijefore it is submitted to H. M. in coiuicil for 
 her assent, lie published in such manner as may from time to time be prescribed 
 by the Board of Trade. 
 
 335. Every order in council made in pursuance of the provisions hereinbefore 
 contained shall be laid before both houses of ^larliament as soon as possible after 
 tlie making thereof. 
 
 336. If the greater part in number of the qualified pilots belonging to any poit, 
 or the local marine board, where there is one, or at any port where there is no 
 local marine board, if any masters, owners, or insurers of ships, being not less than 
 six in number, consider themselves aggrieved by any regulation or bye-law in 
 force when this Act comes into oijeration or hereafter made under some authority 
 other than the provisions of this Act, or liy any defect or omission therein, they 
 may appeal to the Board of Trade, and the said board may thereupon revoke or 
 alter any such regulation or bye-law or may make additions thereto in such 
 maimer as, having regard to the interests of the persons concerned, may aj'tpetu' 
 to be just and expedient ; and every order so made shall be conclusive in the 
 matter. 
 
 Returns by 
 
 Pilotaoe 
 
 Authorities 
 
 (General). 
 
 Pilolak'c autho- 
 
 lietiinis by Pilotage Authorities {Qeneral),. 
 
 337. Every pilotage authority shall deliver periodically to the Board of Tradej 
 in such fonn and at such times as such boanl reipiires, returns of the following
 
 17 & 18 VICT. 0. 104. 711 
 
 piirticulars with regard to pilotage witliiu the port or district under the jurisdic- rities to make 
 tioii (jf such autliority ; (that is to say,) _ _ the^Bou"™o/° 
 
 (1.) All bye-laws, regulations, orders, or ordinances relating to pilots or pilotage Trade of certain 
 for the time being in force : particulars con- 
 
 (2.) The names and ages of all pilots or apprentices licensed or authorised to act pfiot'sigc!' 
 by such authority, and of all pilots or apprentices acting either mediately 
 or immediately under such authority, whether so licensed or authorized 
 or not : 
 
 (3.) The service for which each pilot or apprentice is licensed : 
 
 (4.) The rates of i^ilotage for the time being in force, including therein the 
 rates and descriptions of all charges upon shipping made for or in respect 
 of pilots or pilotage : 
 
 (y.) The total amount received for pilotage, distinguishing the several amounts 
 received from British ships and from foreign ships respectively, and the 
 several amounts received in respect of different classes of ships paying 
 diti'erent rates of pilotage according to the scale of such rates for the time 
 being in force, and the several amoimts received for the several classes of 
 service rentlered by pilots ; and also the amount paid by such ships (if 
 any) as have before reaching the outer limits of pilotage water if outward 
 bound, or their port of destination if inward bound, to take or paj'^ for 
 two or more pilots, whether licensed by the fame or by different pilotage 
 authorities ; together with the numbers of the ships of each of the several 
 classes paying such several amounts as aforesaid: 
 
 (6.) The receipt and expenditure of all moneys received by or on. behaK of such 
 
 authority, or by or on behalf of any sub-commissioners appointed by 
 
 them, in respect of pilots or pilotage : 
 
 And shall allow the Board of Trade, or any persons appointed bj' such board for 
 
 the jnirpose, to inspect any books or documents in its possession relating to the 
 
 several matters hereinbefore required to be returned to the Board of Trade. 
 
 338. If any of such pilotage authorities as aforesaid (other than the Trinity JftJ°^f!if}"o^''' 
 House, or sub-commissioners of pilotage appointed by it, as hereinafter mentioned) give i he required 
 fail to deliver to the Board of Trade the periodical returns hereinbefore rec|uired returns, their 
 ■within one year of such time as may be tixed liy such board for the pur])ose, or if be'transferreci*^ 
 any of such authorities do not allow the said board, or any persons who may be to tiic Trinity 
 appointed by it for the purpose, to inspect any books or documents in their Houac. 
 possession relating to the matters hereinbefore required to be returned by them, it 
 
 shall ho lawful for II. M., by and with the advice of her privy council, to direct 
 that all the rights and powers of such authorities in respect of pilotage shall cease 
 oi- be suspended during such time as II. ]M. directs ; and thereupon the Trinity 
 House shall thereafter, or during such time as such suspension may continue, have 
 and exercise the same powers of appointing sub-comndssioners of pilotage, and of 
 licensing })ilots, tmd of ustabUshing and altering rates of pilotage, within the dis- 
 trict Avithin which the authority so making default has previously appointed or 
 licensed pilots, as it is by tliis Act authorized to exercise in any district for which 
 no particular provision is made by any Act of parliament or charter for the 
 ap])ointment of pilots, and shall also during such time as aforesaid have and exer- 
 cise the same lights, title, and powers to and in respect of any pilotage funds oi' 
 other pUotage property wliich the said pilotage authorities would or might have 
 had or exercised if not so suspended as aforesaid. 
 
 339. The Board of Trade shall witliout delaj' cause the several returns Ketunis (.o be 
 hereinbefore required to be made to such board to be laid before both houses of pai-Z^'^cnt 
 parliament. 
 
 Licoisinrj of Masters and Mates (General). MasHPsaml 
 
 Matea 
 {General). 
 
 340. The master or mate of any ship may, upon giving due notice, and consent- 
 
 ing to pay the usual expenses, apply to any pilotiige authority to be examined as ff'-cx;nninMi"''^^° 
 to his capacity to pilot the ship of which he is master or mate, or any one or more uucl passed, to 
 ships belonging to the same oAvner, Avithiu any part of the district over which icccivc n riloi.
 
 712 
 
 M. y. ACL', 1854, PAKT 5, 
 
 age ccrtiiicitc, 
 enabling him to 
 pilot particular 
 
 iibipii. 
 
 Renewal of 
 pilotage certifi- 
 cate. 
 
 Boanl of Trade 
 to examine and 
 grant pilotage 
 certificates to 
 mates, on pilot- 
 age authorities 
 refusing to 
 do so. 
 
 Foes to be paid 
 upon such 
 certificates and 
 the renewals 
 thereof. 
 
 Power to with- 
 draw pilotage 
 certificates, 
 
 such pilotage aulhoiity lias jmisdiction ; and such master or mate shall, if such 
 authority tliiuks ht, tliereupou he examined; and if found competent a pilotage 
 certificate shall he granted to liim, containing liis name, a specification of the ship 
 or ships in respect of wliich he has heen examined, and a description of the limits 
 witliin Avliich he is to pilot the same, such limits to he within such jurisdiction as 
 aforesaid ; and such certificate shall enahle the person therein named to pilot the 
 ship or any of the ships therein specitied, of -which he is acting as master or mate 
 at the time, hut no other, within the limits therein descrihed, without incurring 
 any penalties for the non -employment of a qualified pilot. 
 
 341. The pilotage certificate so granted shall not he in force for more than one 
 year, unless the same is renewed, which may from time to time he done by an 
 indorsement under the hand of the secretary or other proper officer of tlie autho- 
 rity hj" whom such certificate was granted. 
 
 i342. If, upon complaint to the Board of Trade, it appear to such hoard that any 
 such authority as aforesaid has, without reasonable cause, refused or neglected to 
 examine any master or mate who has apjilied to them for the purpose, or after he 
 has passed the examination has without reasonable cause refused or neglected to 
 grant him a pilotage certificate, or that the examination of any such master or 
 mate has been unfairly or improperly conducted, or that any terms imposed or 
 sought to be imposed by such authority are unfau' or improper, or that any 
 pilotage certificate granted by such authority has been improperly ■withch-awn, the 
 Board of Trade may, if in its judgment the circumstance appear to require it, 
 appoint persons to examine such master or mate, and if he is found competent 
 may grant lum a pilotage certificate, containing the same particulars as would have 
 been inserted in any certificate granted by such pilotage authorities as aforesaid, 
 upon such terms and conditions, and subject to such regulations, as such board 
 may think fit ; and such certificate shall have the same effect as if it had been 
 granted by such pilotage authority as aforesaid ; and such certificate shall be in 
 force for one year, and may be renewed from year to year, either by the said 
 authorities in manner hereinbefore mentioned, or by the Board of Trade, if siach 
 board thinks fit, such renewal to be indorsed on the said certificate, either by 
 such person as the Board of Trade may appoint for the pm-pose, or in manner 
 hereinbefore provided as to certificates granted by any pilotage authority. 
 
 343. All masters or mates, to or for whom any such pilotage certificates as afore- 
 said are granted or renewed by any pilotage authority, shall pay to such authority, 
 or as it directs, such fees upon their respective certificates and upon the renewals 
 thereof as are fi'om time to time fixed for that piu-pose by such authoiity, "ttith the 
 consent of the Board of Trade ; .nnd all masters and mates to or for whom any 
 such certificates are granted or renewed by the Board of Trade shall pay to such 
 board, or as it directs, such fees upon tlieir certificates and upon the renewals 
 thereof as may be fixed by such board, so, nevertheless, that in the case of pilotage 
 certificates granted or renewed by the Board of Tracle, such fees shall in no case 
 be less than the fees payable by the qualified pilots in the same district upon then- 
 licences and the renewal thereof ; and such fees shall, in the case of certificates 
 and renewals granted by pilotage authorities, be applicable either to paying the 
 expense of the examinations, or any other general expenses connected with pilot- 
 age incuiTed by such authorities, or to the pilots' superannuation fund of the 
 district (if any), or other-\\ise, for the benefit of the pilots appointed by such 
 authorities, as such authorities think fit ; and such fees shall, in the case of i)ilot- 
 age certificates granted or renewed by the Board of Trade, be applicable to the 
 expense of the examinations, and the surplus (if any) shall be applied for the 
 benefit of the qualified pilots of the port or clistrict to which such certificates 
 apply, in such manner as such board thinks fit. 
 
 344. If at any time it appears to the Board of Trade, or to any pilotage autho- 
 rity, that any master or mate to whom a pilotage certificate has been granted by 
 such board or authority has been guilty of misconduct, or has shown himself in- 
 competent to pilot his ship, such board or such authority (as the case jnay he) may 
 thereupon withdraw his certificate, and such certificate shall thenceforth cease to 
 be of any efl'ect whatever.
 
 17 & 18 viCT. c. 104. 713 
 
 Pilot Bocds (General). «■, , „ . 
 
 ^ ' Pilot Boats 
 
 (General). 
 
 345. All boats aud ships regularly employed iu the pilotage service of any pjj^^ ^^^ ^^^ 
 district shall be approved and licensed by the pilotage authority of such district, to be provided, 
 who may, at their discretion, appoint and remove the masters of such boats and 
 
 ships. 
 
 346. Every pilot boat or ship shall be distmguished by the folloA\dng character- Characteristics 
 istics ; (that is to say,) boatefa). 
 
 (1.) A black colour painted or tarred outside, with the exception of such names 
 and numbers as are herein-after mentioned ; or such other distinguishing 
 colour or colours as the pilotage authority of the district, with the consent 
 of the Board of Trail e, directs : 
 (2.) On her stern the name of the owner thereof and the port to which she 
 Ijelongs painted in white letters, at least one inch broad and three inches 
 long, and on each bow the numloer of the licence of such boat or ship : 
 (3.) When afloat, a flag at the mast head, or on a sprit or staff, or in some other 
 equally conspicuous situation ; such flag to he of large dimensions com- 
 pared with the size of the boat or ship carrying the same, and to be of 
 two colours, the upper horizontal half white, and the lower horizontal 
 liaK red : 
 And it shall be the duty of the master of such boat or ship to attend to the follow- 
 ing particulars : First, that the boat or ship possesses all the above characteristics ; 
 secondly, that the aforesaid flag is kept clean and distinct, so as to be easily dis- 
 cerned at a proper distance; and, lastly, that the names and numbers before 
 mentioned are not at any time concealed ; and if default is made in any of the 
 above particulars, he shall incur a penalty not exceeding ^20 for each default. 
 
 347. Whenever any qualified pilot is carried oft' in a boat or ship not in the Qualified pilot 
 pilotage service, he shall exhibit a flag of the above description, in order to show to display tlag 
 that such boat or sliip has a qualified pilot on board ; and if he fails to do so, pHotljoaL "^ 
 ■without reasonable cause, he shall incur a penalty not exceeding £50. 
 
 348. If any boat or ship, not having a licensed pilot on board, displays a flag of Penalty on 
 the above-mentioned description, there shall be incurred for every such offence a ^ig^^^!'-^ ''°^-j + 
 penalty not exceeding £50, to be recovered from the owner or from the master of flag. ^^ 
 such boat or shij). 
 
 Pilot Licences (General). 
 
 349. Every qualified pilot on his appointment shall receive a licence, containing \Gcmral). * 
 his name and usual place of abode, together with a description of his person, and . 
 
 a specification of the limits within which he is qualified to act : and it shall be the ^iyi'^f/^^ucg (j,). 
 duty of the principal ofticer of customs at the place at or nearest to which any 
 qualified pilot may reside, upon liis request, to register his licence ; and no quali- 
 fied pilot shall be entitled to act as such until his licence is so registered ; and any 
 qualified pilot acting beyond the limits for which he is qualified by his licence shall 
 be considered as an unc^ualified pilot. 
 
 350. Every qualified pilot shall, upon receiving his licence, be furnished with a Copies of rcgii- 
 copy of such part of this Act as relates to pilotage, together with a copy of the '"^i"?!: ^° ^° 
 rates, bye-laws, and regulations established within the district for which he is quaiined pilot 
 licensed ; and he shall produce such copies to the master of any sMp, or other and to be pro- 
 person employing him, when required to do so, under a penalty in case of default '^^^'^^^ ^'^ ^^^' 
 not exceeding £b. 
 
 351. Every qualified pilot, while acting in that capacity, shall be provided Avith Qualified pilot 
 his licence, and produce the same to every person by whom he is enqiloyed, or to |? produce 
 whom he tenders his services as pilot ; and if he refuses to do so at the request of employer. 
 
 («) In addition to the manner in which pilot initial letter of the port to which she belongs 
 
 vessels arc required to be distiugaished by this painted black of a certain size on the mainsail 
 
 sect., pilot vessels licensed by the Trinity ilousc and trysail ; sec Kay on Shipmasters App. Ixix. 
 must have the number of such vessel "and the (&) Sec 35 & 36 Vict. c. 73, s. 11, x>ost.
 
 714 
 
 M. S. ACT, 1854, TAKT 5, 
 
 Licences to be 
 ilelivcred tip. 
 when rc()uiro(l. 
 and returucU on 
 tlcatli. 
 
 fill ell person, he sliall inciu' for each offence a penalty not exceeding ^10, and 
 shall be sulyect to suspension or dismissal by the pilotage authority by whom 
 he is licensed. 
 
 352. Every qualified pilot, when required by the pilotage authority who 
 appointed him, shall proclucc or deli\-er up his licence ; and on the death of any 
 qualitied pilot the person into whose hands his licence happens to fall shall with- 
 out delay transmit the same to the pilotage authority Avhu appointed the deceased 
 pilot ; and any pilot or person failing to comply with the proATisions of tlris section 
 shall incur a i^enalty not exceeding £10. 
 
 Compulsory 
 Pilotanc 
 {General). 
 
 Compulsory 
 pilotage in what 
 iiuiile to be 
 enforced («). 
 
 Home trade 
 passenger ships 
 to employ 
 qualified pilots, 
 nnless they have 
 certificated 
 masters or 
 mates ((/)■ 
 
 Gomimlsory Pilotage {General). 
 
 oho. Subject to any alteration to be made by any pilotage authority in pur- 
 suance of the power hereinbefore in that behalf given, the employment of pilots 
 shall continue to l:ie compulsory in all districts in wliich the same was by law com- 
 pulsory immediately (5) before the time when this Act comes into operation; 
 and all exemptions (c) from compulsory pilotage then existing Avithin such dis- 
 tricts shall also continue in force ; and every master of any imexempted ship 
 navigating within any such district who, after a qualified pilot has offered to take 
 charge of such sliip or has made a signal for that purpose, either himself 
 pilots such sliip without possessing a pilotage certificate enabling him so to do, or 
 employs or continues to employ an unqualified person to pilot her, and eveiy 
 master of any exempted ship navigating within any such district who, after a 
 <[ualified pilot has offered to take charge of such ship, or has made a signal for 
 that purpose, employs or continues to employ an unqualified pilot to pilot her, 
 shall for every such oft'ence incur a penalty of double the amount of pilotage 
 demandable for the conduct of such ship. 
 
 354. The master of every ship carrying passengers between any place situate in 
 the U. K., or the islands of Guernsey, Jersey, Sark, Aldemey, and Man, and any 
 other place so situate, when navigating upon any waters situate Avithin the limits 
 of any district for Avhich pilots are licensed by any pilotage authority under the 
 provisions of this or of any other Act, or upon any part thereof so situate, shall, 
 unless he or his mate has a pilotage certificate enabling such master or mate to 
 jfilot the said ship within such district, granted under the provisions hereinbefore 
 
 ((/) See 25 & 26 Vict. c. 03, s. 41. 
 
 (It) The Time, Jinp. Cuin.v. Gen. Steam Xai\ 
 Co. 30 L. J. Q. B. 22. 
 
 ((■) Those exemptions arc contained in 6 Geo. 4, 
 e. 125. s. 59: Provided always, and bo it fuithcr 
 (Miaetcd. that fur and notwithstanding anything 
 in this Act contained, the master of any collier. 
 or of any shii> or vessel trading to Xor\A:iy. or to 
 the Cattegat or Baltic, or round the North Cape. 
 or into iho White .'^ea.on their inward or outward 
 voyages, or of any constant trader inwards, from 
 the ports between Boulogne inclusive and the 
 Baltie (all such ships and vessels having British 
 registers, and eoniing up either (y/c) by the 
 North Channel, but not otherwise.) or of any 
 Irish trader using the navigation of the rivers 
 Thames and ^Mcdway. or of any ship or vessel 
 employed in the regular coasting trade of the 
 kingdom, or of any ship or vessel wholly laden 
 with stone from Guernsey. Jersey, Alderney, 
 Sark or Man, ;ind being the production thereof, 
 or of any ship or vessel not exceeding the 
 burthen of sixty tons, and having a British 
 register, except as hereinafter provided, or of 
 any other ship or vessel whatever, wliilst the 
 same is within the limits of the port or place to 
 which she belongs the same not being a port or 
 place in relation to which particular provision 
 hath heretofore been made by any Act or Acts of 
 l)arliament. or by any charter or charters for the 
 appoiiiimeni of pilots, shall and may lawfully, 
 and without Ixiiig subject to any of the penalties 
 by (his Act imposed, conduct or pilol bis own 
 ship or vessel when and so long as he shall con- 
 
 duct or pilot ilic same without the aid or 
 assistance of any unlicensed pilol or other person 
 or persons than the ordinary crew of the said 
 ship or vessel. 
 
 Sect. tiO gives power to II. 'M. by order in 
 council to permit certahi ships to be piloted and 
 conducted without having a duly licensed pilot 
 on board upon certain terms and conditions 
 (see Order in Council). 
 
 Sect. 62. If the master or mate is the owner or 
 part owner of the ship, and resides at Dover, 
 Deal, or the Isle of Thanet. he may pilot his shiji 
 from such place up or down the Thames and 
 3Iedway, or into or out of any port or place 
 within the juiisdiction of the Cincjuc ports. 
 
 By sect. 63 when any ship shall have been 
 brought into any port in England by any jnlot 
 duly licensed, nothing in this Act is to subject to 
 any penalty the master or mate, or other person 
 belonging to such ship, and having the command 
 thereof, or if in ballast, any person appointed 
 by any owner, or master or agent of the owner 
 thereof, for afterwards removing such ship in 
 such port for the purpose of enterhig into or 
 going out of any dock, or for changing the 
 moorings of such ship or vessel. 
 
 Sect. 59 applies to certain vessels coming from 
 Norway ; and see Order in Council, 18th Feb- 
 ruary. 18.54. The Sanneth, L. R. 1 A. & E. 291 ; 
 36 L. J. Ad. 1. 
 
 As lo pilotage being compulsory ou a vessel 
 bclongiu'-t lo the porl. of London within Ihc rivet' 
 Thames, ^w the Huiihoir. L. R. 4 1*. D. VJl, 
 
 ('0 The Temvra, Lush. 17,
 
 17 & IS VICT. 0. 104-. 
 
 715 
 
 C'ertificalcs lunv 
 to be granted to 
 such masters 
 
 contained, or suck certilicatu as iicxt hereinafter mentioned, Ijeing a certitlcate 
 applicable to such district and to stich ship, employ a (qualified pilot to pilot his 
 ship ; and if he fails so to do he shall for every ofi'ence incur a penalty not exceed- 
 ing £100. 
 
 355. Any maeter or mate of a ship which by the last preceding section is made _ 
 subject to compulsory pilotage may apply to the Board of Trade for a certihcate, and mates (c) 
 and the Board of Trade shall theretipon, on satisfactory proof of his having con- 
 tinuously piloted any ship within the limits of any pilotage district, or of any part 
 or parts thereof for two years prior to tlie commencement of this Act, or upon 
 satisfactory proof by examination of liis competency, or otherwise as it may deem 
 expedient, cause to be granted to him, or to be indorsed on any certificate of com- 
 petency or service obtained by him under the third part of this Act, a certificate 
 to the effect that he is authorized to pilot any ship or ships belonging to the same 
 owner, and of a draught of water not greater than such draught as may be specified 
 in the certificate within the limits aforesaid ; and the said certificate shall remain 
 in force for such time as the Board of Trade directs, and shall enable the master 
 or mate therein named to conduct the ship or ships therein specified within the 
 limits therein described to the same extent as if the last j^receding section had not 
 been passed, but not further or otherwise ; and every such master or mate shall, 
 upon applying for such certificate or for any renewal thereof, pay to the Board of 
 Trade or as it directs such fees not exceedmg the fees payal:)le on an examinaticjn 
 for a master's certificate of competency under the third part of this act as the 
 Board of Trade directs ; and such fees shall be applied in the same manner 
 in wliich the fees payable on such last-mentioned examination are made 
 applicable. 
 
 Eights, Privileges, and Bemuneratiou of Pilots {General), 
 
 356. If any boat or ship, having a qualified pilot on board, leads an\- ship which 
 has not a qualified pilot on board when such last-mentioned ship cannot from 
 particular circumstances lie boarded, the pilot so leading such last-mentioned ship 
 shall be entitled to the full pilotage for the distance run as if he had actually been 
 on board and had charge of such ship. 
 
 357. No pilot, except under circumstances of unavoidable necessity, shall with- 
 out his consent be taken to sea or beyond the limits for Avhich he is licensed in 
 any ship whatever ; and every pilot so taken under circumstances of unavoidable 
 necessity or without his consent shall be entitled, over and above his pilotage, to 
 the sum of ten shillings and sixpence a day (/), to be computed from and inclusive 
 of the day on which such ship passes the limit to which he was engaged to pilot 
 her up to and inclusive of the day of his being returned in the said ship to the 
 place where he was taken on board, or itp to and inclusive of such day as will 
 allow him, if discharged from the ship, sufficient time to return thereto ; and in 
 such last-mentioned case he shall be entitled to Ms reasonable travellmg 
 expenses. 
 
 358. Any qualified pilot demanding or receiving, and also any master oftering 
 or paying to an}' pilot, any other rate in respect of pilotage services, wdrether 
 greater oir less, tlian the rate" for the time being demandable by law, shall for each 
 ofi'ence incur a penalty not exceeding £\0. 
 
 359. If any master, on Ijeing requested by any qualified pUot having the charge 
 of his sliip to declare her draught of water, refuses to do so, or himself makes or 
 
 Mif/hts, Privi' 
 ieijcs and 
 
 Remuneration 
 of Pilots 
 {Oeneral), 
 
 Qualified pilot 
 unable to board, 
 when entitled 
 to pilotage. 
 
 Allowance to 
 ((ualitted pilot 
 taken out of 
 his district. 
 
 Penalty on 
 qualified pilot 
 I'ccciviug or 
 master offering 
 impi'oper 
 rate (.'/). 
 Penalty on 
 making a false 
 
 (c) The Earl of Auckland, Lush. 164. 
 
 (/) This compensation is not recoverable from 
 the shipbroker as a pilota.sc due under sect. 3G3. 
 Morteo v. .Julian, 48 h. J. U. C. 126. 
 
 (0) Sec 35 & 3« Vict. c. 73, s. 9, jtost ; Order in 
 Council, .5th Pebrnar.v, 1873. From and after the 
 1st day of January, 1873, no pilot licensed by the 
 Trinity House for the river Thames between 
 (iravesend and L/Oudon Uridgo only shall incur 
 any penally for demanding or receiving, in 
 respect of the pilotage withiu the limits afore- 
 
 said, of any ship exempted from compulsory 
 pilotage, any rate less than the rate for the time 
 being demandable by law in respect of such ship, 
 and no master of any such ship shall incur any 
 penalty for offering or paying, in respect of the 
 pilotage of any such ship withirt the limits afore- 
 said, any rate less than the rate for the time 
 being demandable by law in respect of such ship, 
 anything conlaiiietl in the 358tli section of "Tho 
 Mercliaul, Shipping Act, 1851," to the eouirary 
 uotwilhstauUiug.
 
 716 
 
 M. S. ACT, 1854, PAET 5, 
 
 declaration as to 
 (Iniught of ship 
 or falsifyiug 
 marks. 
 
 Power of 
 qualified pilot 
 to supersede 
 unqualitied 
 pilot. 
 
 rcnalty nu 
 unqualified 
 person acting 
 as pilot. 
 
 Occasions on 
 ■which un- 
 licensed persons 
 may act as 
 pilots. 
 
 Liability for 
 and recovery of 
 pilotage dues. 
 
 Power for 
 consignees to 
 retain pilotage 
 dues paid by 
 them. 
 
 is pi'ivy to any other person making a lalse declaration to such pilot as to snch 
 draught, he ^<hall incur a penalty for every such offence not exceeding douljle the 
 amoimt of pilotage which would have been payable to the pilot making such 
 i-equest ; and if any master or other person interested in a ship makes or is privy 
 to any other person making any fraudulent alteration in the marks on the stem or 
 stem post of such ship, denoting her draught of water, the offender shall incur a 
 penalty not exceeding £500. 
 
 360. A fjualihed pilot may supersede an unqualified pilot, but it shall be la-nd'ul 
 for the master to pay to such unqualified pilot a proportionate sum for his services, 
 and to deduct the same from the charge of the qualified pilot ; and in case of dis- 
 pute the pilotage authority by whom the qualified pilot is licensed shall determine 
 the proportionate simis to which each party is entitled. 
 
 361. An unqualified pilot assuming or continuing in the charge of any ship 
 after a qualified pilot has offered to take charge of her, or using a licence which he 
 is not entitled to use for the purpose of making himself appear to be a qualified 
 pilot, shall for each offence incur a penalty not exceeding £50. 
 
 362. An unqualified pilot may, witlun any pilotage district, witliout subjecting 
 himself or his employer to any penalty, take charge of a ship as pilot under the 
 foUo^\^ng circumstances ; (that is to say,) 
 
 When no qitalified pilot has offered to take chai-ge of such sliip, or made a signal 
 for that purpose ; or 
 
 When a ship is in distress or under circumstances making it necessary for 
 the master to avail himself of the best assistance wliich can be found at the 
 time ; or 
 
 For the purpose of changing the moorings of anj' shij) in port, or of taking her 
 into or out of any dock, in cases where stich act can be done by an unquali- 
 fied pilot, without infringing the regtilations of the port or any orders which 
 the harbour master is legally empoAvered to give. 
 
 363. The following persons shall be liable to pay pilotage dues for any shi]> for 
 which the services of a qualified pilot are obtauied ; (tliat is to say,) the owner or 
 master, or such consignees or agents thereof as have paid or made themselves 
 liable to pay any other charge on account of such ship in the port of her arrival 
 or discharge as to pilotage inwards, and in the port from which she clears otit as 
 to pilotage otttwards ; and in default of payment such pilotage dues may be 
 recovered in the same manner as penalties of the like amount may be recovered 
 by virtue of this Act ; but sucli recovery shall not take place until a previotis 
 demand thereof has been made in writing and the dues so demanded have remained 
 unpaid for seven days after the time of such demand Ijeing made. 
 
 364. Every consignee or agent (not being the owner or master) hereby made 
 liable for the payment of pilotage dues in respect of any sliip may, out of any 
 monies in his hands received on accotmt of such ship or belongmg to the owner 
 thereof, retain the amount of all dues so paid by him, together with any reason- 
 able expenses he may have incurred by reason of such payment or liability. 
 
 Offences of 
 
 Pilots 
 (General), 
 
 Penalties on 
 (lualificd pilot ; 
 
 Exercising cer- 
 tain trades ; 
 
 Offending 
 against revenue ; 
 
 Gnilty of 
 corrupt prac- 
 tices ; 
 
 Lending 
 license ; 
 Acting when 
 suspended ; 
 
 365. 
 
 to sav. 
 
 (2.) 
 (3.) 
 
 Offences of Pilots {General). 
 If any qualified pilot commits any of the following offences ; (that is 
 
 (4.) 
 (5.) 
 
 Keeps himself, or is interested in keeping by any agent, servant, or other 
 person, any public house or place of public entertainment, or sells or is 
 interested in selling any wine, spirituous liquors, toliacco, or tea ; 
 
 Commits any fraud or other offence against the revenues of customs or 
 excise or tlie laws relating thereto ; 
 
 Is in any way directly or indirectly concerned in any corrupt practices 
 relating to ships, their tackle, liu-nitirre, cargoes, crews, or passengers, or 
 to persons in distress at sea or by shipwreck, or to their monies, goods, 
 or chattels ; 
 
 Lends his licence ; 
 
 Acts as pilot Avliilst suspended J
 
 17 & 18 VLOT. 0. 104 717 
 
 (6.) Acts as pilot when in a state of intoxication ; Acting when 
 
 (7.) Employs or canses to lie employed on board any ship of which he has the tinmk; 
 
 charge any hoat, anchor, cable, or other store, matter, or thing beyond Uiiuecessaniy 
 what is necessary for the service of such shij), with the intent to enhance expense ; 
 the expenses of pilotage for his own gain or for the gain of any other 
 person ; 
 (8.) Eefuses or wilfully delays, when not prevented by illness or other reason- Dooitaing to 
 able cause, to take charge of any ship within the limits of his licence ^° ° ' 
 upon the signal for a pilot being made by such ship, or upon being 
 rec|uired to do so by the master, owner, agent, or consignee thereof, or by 
 any officer of the pilotage authority by Avhom such pilot is licensed, or by 
 any principal officer of customs ; 
 (9.) Unnecessarily cuts or slips or causes to be cut or slipped any cable belong- Unnecessarily 
 ing to any" ship ; ' gii"Tn rable • 
 
 (10.) Refuses, on the request of the master, to conduct the sliip of wliich he has Rp^fis^J'to ° ' 
 the charge into any port or place into wdiicli he is cpialified to conduct conduct ship 
 the same, except on reasonable ground of danger to the ship; into port; 
 
 (11.) Quits the ship of which he has the charge, without the consent of the Qiutting ship, 
 master, before the service for which he was hired has been performed ; 
 He shall for each offence, in addition to any liability for damages at the suit of 
 the person aggrieved, incur a penalty not exceeding JlOO, and be liable to 
 suspension or dismissal by the pilotage aitthority by whom he is licensed ; and 
 every person who procures, abets, or connives at the commission of any such 
 offence shall likewise, in addition to any such liability for damages as aforesaid, 
 incur a penalty not exceeding ^100, and, if a qualified pilot, shall be liable to 
 suspension or dismissal by the pilotage aitthority by whom he is licensed, 
 
 366. If any pilot, when in cliarge of any ship, by wilful breach of duty or by Penalty on pilot 
 neglect of duty, or by reason of drunkenness, does any act tending to the imme- shjlfji^e""!^ 
 diate loss, destruction, or serious damage of such ship, or tending immediately to limb, 
 endanger the life or limb of any person on board sttch ship ; or if any pilot, by 
 
 Avilful breach of dvtty or by neglect of duty, or by reason of drunkenness, refuses 
 or omits to do any lawful act proper and requisite to be done by him for preserv- 
 ing stich ship from loss, destrtiction, or seriotis damage, or for preserving any 
 person belonging to or on board of sttch ship from danger to life or limb ; tlie pilot 
 so oft'ending shall for each such offence be deemed gttilty of a misdemeanor, aiad, if 
 a qualified pilot, also be liable to suspension and dismissal by the attthority by 
 Avhich he is licensed. 
 
 367. If any persoit, by wilfttl misrepresentation of circttmstances upoir which Penalty o" pi'ot 
 the safety of a ship may depend, obtains or endeavotirs to obtain the ciiarge of ship ciofng her 
 such ship, such person, and every other person procttring, abetting, or conniving wilfnl injury, 
 at the commission of sttch oftence, shall, in addition to any liability for damages 
 
 at the suit of the party aggrieved, incur a penalty not exceeding j£100 ; and, if 
 the oftender is a qtialified pilot, he shall also be liable to stispension or tlismissal 
 by the pilotage attthority by which he is licensed. 
 
 General Power of Trinitv House. Geneml power 
 
 -> •) of 
 
 Trinity Mouse. 
 
 368. The Trinity House may in exercise of the general power lierein-before Power" 
 given to all pilotage authorities of doing certain things in relation to pilotage Trinity House 
 matters, alter such of the provisions herein-after coirtained as are expressed to be tions?' ieB"ia' 
 subject to alteration by them in the same manner and to the same extent as they 
 
 might have altered the same if such provisions had been contained iir any previous 
 Act of parliament instead of in this Act. 
 
 Suh-Commissioners and Pilots (Trinity House). 'sioiurTami 
 
 Pilots 
 (Trinity House). 
 
 369. The Trinity Hottse shall contintte to appoint sub-commissioners, not being „ .""r 
 more than five nor less than three in nitmber. for the j)urpose of examining pilots Tr^ity°Honse
 
 718 
 
 >r. S. ACT, 1854, PALi'T 5, 
 
 TO appoint sub- 
 I'oiniulssloncrs. 
 
 Tiinity House 
 to liccDwe pilots 
 to act within 
 cortain limit.-. 
 
 (2.) 
 (3.) 
 
 Publication of 
 notice of licenses 
 (if pilots hy the 
 Trinity House. 
 
 IJoncU to be 
 given. 
 
 Liability 
 limited. 
 
 Continuance 
 and renewal of 
 licenses (c). 
 
 Power to revoke 
 and suspend 
 licenses. 
 
 in all di.stricts in which thoy have been used to make .such aj^pointmcnts, and 
 ma}', with the consent of H. ^I. in council, but not otherwise, ajipoint like suIj- 
 commissioners for any other district in wliich no particular pro\'ision is made by 
 any Act of parliament or charter for the appointment of pilots ; but no pilotage 
 district already under the authority of any sub-commissioners appointed by the 
 Trinity House .shall be extended, except with such consent as afore.said, and no 
 sub-commissioners so appointed shall be deemed to be pilotage authorities within 
 the meaning of this Act. 
 
 370. The Trinity House shall continue, after due examination by themselves or 
 their sub-commissioners, to appoint and license under their common seal pilots 
 for the ptu'pose of conducting ships within the limits following, or any portion of 
 such limits ; (that is to say,) 
 
 (1.) "The London District," comprising the waters of the Thames and Medway 
 as liigh as London Bridge and Eochester Bridge respectively, and alsd 
 the seas and channels leading thereto or therefrom as far as Orfordncss 
 to the north and Dungeness to the south; so neverthele.ss, that nu 
 pilot shall be hereafter licensed to conduct ships both above and below 
 Gravesend (a) : 
 
 The English Channel Districts," comprising the seas between Dungeness 
 and the'^Isle of Wight : 
 
 The Trinity House Outports Districts," comprising any Pilotage districts 
 for the appointment of pilots within wliich no particular pro\asion (b) is 
 made by any Act of pai'liament or charter. 
 
 371. Subject to any alteration to be made by the Trinity House, the names of 
 all pilots licensed by the Trinity House shall be published in manner follo^ring ; 
 (that is to say,) 
 
 (1.) The Trinity House .shall at their house in London fix up a notice specifying 
 the name and usual place of abode of every pilot so licensed, and the 
 limits within which he is licensed to act : 
 (2.) The Trinity Hotise .shall transmit a copy of such notice to the commis- 
 sioners of customs in London, and to the principal officers of customs 
 re.sident at all ports within the limits for which such pilot is licensed ; 
 and such notice shall be posted up by the commissioners at the custom- 
 house in London, and by such otficers at the custom-houses of the ports at 
 which they are respectively resident. 
 Subject to any alteration to be made by the Tilnity House, every Trinity 
 pilot on his appointment shall execute a bond for £100. con- 
 ditioned for the due observance on liis part of the regulations and bye-laws of 
 the Trinity House ; such bond to be free from stamp duty and from any other 
 charge excej^t the actual expense for preparing the same. 
 
 373. No tjualified pilot Avho has executed such bond as is herein-before men- 
 tioned shall be liable for neglect or want of sldll bej'ond its penalty and the 
 amount of pilotage payable to him in respect of the voyage on Avhich he is 
 engaged. 
 
 374. Subject to any alteration to be made by the Trinity House, no license 
 granted by them shall continue in force beyond the 31st tlay of January 
 next ensuing the date of such license, but the same may, upon the application of 
 the pilot holding such license, be renewed on such 31st day of January in every 
 year, or any subsequent day, by indorsement under the hand of the secretary of 
 the Triirity House, or such other person as may be appointed by them for that 
 purpose {(), 
 
 375. The Trinity House shall have power to revoke or suspend the license 
 of anv pilot appointed bv them, in such manner and at such time as they 
 think fit. 
 
 372. 
 Hor;se 
 
 (o) Gravesend for pilotage purposes 'is the 
 oastern limit of the port of London; General 
 ,steam Savk/ation Com pari)/ v. British, ilc., Co., 
 38 L. J. Ex. '97. 
 
 {&) Hadoraft v. Heicith, 44 L. J. M. C. 140, 
 
 where it was held that the provisions of a local 
 act were not '■ panicular provisioas '" within this 
 section, and that the port of Ispwch v\as a 
 Ti'initv House outport district, 
 (cj The Beta, 3 Moo. P. C. (N.S.) 23, 30.
 
 17 k 18 YTCT, 0. 104. 719 
 
 Compulsonj Pilotage {Trinify House), 
 
 Compiilporii 
 37G. Subject to any alteration to Le made by the Trinity House, and to the rTrivmnmse). 
 exemptions herein-after contained, the pilotage districts of the Trinity House ^- 
 
 within which the employment of pilots is compulsory are the London district ^"^"""^y™ 
 and the Trinity House outport districts as herein-before defined ; and the master cmpioyins? ^ 
 of every ship navigating within any part of such district or districts, who, after a iiniicensed 
 qualified pilot has offered to take charge of such ship, or has made a signal for ?,"'pQot! acting 
 that purpose, either himself pilots such ship Avithout possessing a certificate ' 
 enabling hinr so to do, or employs or continues to employ an unqualified person 
 to pilot her, shall for every such oftence, in addition to the penalty herein-before 
 specified, if the Trinity House certify in writing under their common seal that 
 tlie prosecutor is to be at libertj^ to proceed for the recovery of such additional 
 penalty, incur an additional penalty not exceeding bl. for every fifty tons burden 
 of such ship. 
 
 377. Sulijoct to any alteration to be made by the Trinity House, a sufficient ?''"^'^? Hmisp 
 number of qualified pilots shall always be ready to take charge of ships coming tions fdi- m toh- 
 from the westward past Dungeness ; and the Trinity House shall, by bye-law to stant suiuiiyof 
 be made iir the same manner as otlier liye-laws made under the powers herein a"Dim^cii'c<<''^ 
 contained, make such regulations with respect to the pilots under their control as 
 
 may be necessary in order to provide for an unintermitted supply of qualified 
 pilots for such sliips, and to insure their constant attendance upon aiid due per- 
 formance of their duty both by night and day, whether by cruising between the 
 South Foreland and Dungeness, or by going off fi'om shore upon signals made for 
 the purpose, or by both of such means, or liy any other means, and wliether in 
 rotation or otherwise, as the Trinity House think fit. 
 
 378. Subject to any alteration to be made liy the Trinity House, every master Ship coming past 
 of any ship coming from the westward, and bound to any place in the rivers ha^ilg^^not'oii 
 Thames and Medway (unless she has a qualified pilot on board or is exemjited board to taicp 
 from comptilsory pilotage), shall, on the arrival of such ship oft' Dungeness, and pHotwho ofior*'^ 
 thenceforth until she has passed the south buoy of the brake, or a line to be 
 
 di'awn from Sandown Castle tf) the said buoy, or tuitil a qualified pilot has come 
 
 on board, display and keep flying the usual signal for a pilot ; and if any qualified 
 
 pilot is within hail, or is approaching and within half a mile, and has the proj^er 
 
 distinguishing flag flying in his boat, such master shall, by heaviug-to in proper 
 
 time or shortening sail, or by any practicalile means consistent with the safety of 
 
 his ship, facilitate such pilot gettmg on board, and shall give the charge of piloting 
 
 his ship to such pilot ; or if there are two or more of such jiilots oftering at the 
 
 same time, to such one of them as may, according to the regulations for the time 
 
 being in force, be entitled or required to take such charge; and if any s^ich ^'""gj,^ ^'°j^ 
 
 master fails to display or keep flying the usual signal for a pilot in manner herein- to' display usual 
 
 before required, or to facilitate any such qualified pilot as aforesaid getting on signal for pilot. 
 
 board as herein-before requiied, or to give the charge of piloting his ship to such 
 
 pilot as herein-before mentioned in that behalf, he shall incur a penalty not 
 
 exceeding double the sum which might have been demanded for the pilotage of 
 
 his ship ; such penalty to be paid to the Trinity Hoiise, and to be carried to the 
 
 account of the Trinity House Pilot Fund. 
 
 379. Tlie following sliips, when not carrying passengers, (d) shall be exempted Exemptions 
 from compulsory pilotage in the London district, and in the Trinity House out- soiy p'ilotageV). 
 port districts ; (that is to say,) 
 
 (1.) Ships employed in the coasting trade (/) of the V. K. : 
 (2.) Ships of not more than sixty tons burden : 
 
 (3.) Ships trading to Boulogne or to any place in Europe north of Boulogne : 
 (4.) Ships from Guernsey, Jersey, Aklemey, Sark, or Man, which are wholly . 
 laden with stone being the produce of those islands : 
 
 (<n In a cause of damage it appeared that lision. — Held, that they wore not passengers 
 
 at the time of the collision the master of the \Yithia the meaning of this section. Tlie Lion, 
 
 damaging ship had on board his wife and his 38 L. J. Ad. 51 ; The Tfo/^jiw, 36 L. .T. Ad. 1. 
 
 wife's father. They were on board by the invita- (f) There are other exemptions, by different 
 
 tion of the master, and without the privity of the orders in council, 
 
 owners, imd they paid no fare till after the col- (/) The Lloyds, Lush, 197,
 
 720 M, S. ACT, 1854, TART 5, 
 
 (5.) Ships navigating within («.) the limits of the port to which they belong : 
 (6.) Sliips passing through tlie limits of any pilotage district, on tlieir voyages 
 between two places both situate out of such limits, and not being bound 
 to any place within such limits nor anchoring therein. [See 25 & 26 Vict. 
 c. 63, s. 41.] 
 
 BaUs of Mates of Pilotage (Tnnifii House). 
 
 Pilotaf/e. 
 (Trinity House). 
 
 Rates of 380. Subject to any alteration to be made by the Trinity House, there shall 
 
 pilotage, continue to be paid to all Trinity House pilots, in respect of their pilotage 
 
 ser\ices, such dues as are immediately before the time when this Act comes into 
 operation payable to them in respect of such services. 
 Payment of 381. Subject to any alteration to be made by the Trinity House, and not^nth- 
 
 piiotage dues standing anything herein-before contained, there shall be paid in respect of all 
 ships t*radfng foreign ships trading to and from the port of London, and not exempted from 
 to and from tlie pilotage, the following pilotage dues ; that is to say, as to ships inwards, the full 
 port of London. aruQunt of dues for the distance piloted, and as to ships outwards, the full amount 
 of dues for the distance required by law ; and payment of such pilotage dues shall 
 be made to the collector of customs in the port of London by some one or more of 
 the following jiersons, that is to say, the master or other person having the charge 
 of such ship, or the consignees or agents thereof, who have paid or made them- 
 selves liable to pay any other charge for such ship in the said port of London ; 
 and such pilotage may be recovered in the same manner as other pilotage dues 
 are herein-before declared to be recoverable. 
 Certifieate of 382. Subject to any alteration to be made by the Trinity House, the said col- 
 
 pfiota^e^o^bo lector of customs shall, on recei\dng any pilotage dues in respect of foreign ships, 
 given.'' give to the person paying the same a receipt in AVTiting ; and no officer of customs 
 
 in the port of London .shall grant a clearance or ti'ansire for any such foreign 
 ship as aforesaid, without the production of such receipt ; and if any such ship 
 attempts to go to sea without such clearance or transire, any such officer may 
 detain her luitil the said receipt is produced. 
 Application of 383. Subject to any alteration to be made by the Trinity House, the said col- 
 Micii moneys by lector shall pay over to the Trinity House the jDilotage dues received by him in 
 iim y oiise. yggpg^^ ^f j^^y foreign ship ; and the Trinity House shall apply the same in 
 manner following : 
 
 In the tirst place, in paying to any pilot, who may bring sufficient proof of his 
 
 having had the charge of such ship, such dues as woidd have been payable 
 
 to him for such pilotage service if the ship had been a British ship, after 
 
 deducting therefrom the poundage due to the Trinity House : 
 
 In the second place, in paying to any unlicensed j^erson, who may bring 
 
 sufficient proof of his having, in the absence of a licensed pilot, had the 
 
 charge of such ship, such amount as the Trinity House may think proper, 
 
 not exceeding the amount which would under similar circumstances have 
 
 been payable to a licensed pilot, after deducting poimdage : 
 
 And lastly, shall pay over to the Trinity House Pilots' Fimd the residue, 
 
 together with all poundage deducted as aforesaid. 
 
 Settlement of 384. Whenever any difference arises between the master and the qualified pilot 
 
 difference as to of any ship trading to or from the port of London as to her di'aught of water, the 
 
 draught of sliip. rpj,-j-^-^.y jjQ^gg shall, upon application by either party, made, in case of a ship 
 
 inward bound, Avithin 12 hoiu'S after her arrival or at some time before she 
 
 begins to discharge her cargo, and in the case of a ship outward bound, before she 
 
 Cjitits her moorings, apjDoint some proper officer who shall measure the ship, and 
 
 settle the difference accordingly : and there shall be paid to the officer measuring 
 
 such ship, by the party against whom he decides, the following sums ; (that is to 
 
 .say,) one guinea if the sliip be below, and half a guinea if the ship be above the 
 
 entrance of the London Docks at Wapping. 
 
 (rt) The Stetton, Br. & L, P. C. 200.
 
 17 & IS VICT, 0. 104s 721 
 
 Pilot Fund {Trinihi House). Pilot Fund 
 
 (^Trinity Hottse). 
 
 385, Subject to any alteration to be made by the Trinity House, there shall Payments to be 
 
 continue to be paid to them, and carried over to the Trinity House Pilot Fund, ,"|fii.*'/° 1^1, 
 .1 i> ^ p 11 • /ii . • i \ pilot fimd (0), 
 
 the sums oi money loUowmg : (that is to say,) 
 
 (1.) A poundage of sixpence in the pound, upon the pilotage earnings of all 
 
 pilots licensed by the Trinity House : 
 (2.) A sum of 3^. 3s. to be paid on the first day of January in every year by 
 
 every person licensed by the Trinity House to act as pilot in any district 
 
 not under the superintendence of sub-commissioners, or in any part of 
 
 such district : 
 And any qualified jjilot giving a false account of his earnings, or making default 
 in payment of any sum due from him under this section, shall forfeit double the 
 amount payable, and shall further be liable, at the discretion of the Trinity 
 House, to suspension or dismissal. 
 
 386. Subject to any prior charges that may be subsisting thereon by virtue of Application of 
 any act or acts of parliament or otherwise, the said Trinity House Pilot Fund ^ 
 
 shall be chargeable in the first instance with such expenses as the Trinity House 
 may duly incur in performance of their duties in respect of pilots and pilotage, 
 and after payment thereof shall, subject to any alteration to be made by the 
 Trinity House, be administered by the Trinity House for the benefit of such 
 pilots, licensed by them after the first day of October, 1853, as are incapacitated 
 for the performance of their duty by reason of age, infirmity, or accident, or 
 of the widows and cliildren of pilots so licensed, or of such incapacitated pilots 
 only. 
 
 Appointment of Sub-Commissioners by Trinity Hoitses of Hull and Newcastle. Appointment of 
 
 Sub-CommiS' 
 sioners by 
 387. The two Corporations of the Trinity Houses of the Ports of Hull and Trinity Hou^e-i 
 Newcastle shall continue to appoint sub-commissioners, not being more than ofHuUand 
 
 seven nor less than three in numbei', for the purpose of examining pilots in all " - 
 
 districts in which they have been used to make such appointments, and may, with Power to Tilnity 
 the consent of H. M. in coimcil, but not otherwise, appoints like sub-commissioners ancTNewcastleto 
 for any other district situate within their respective jurisdictions ; but no pilotage appoint sub- 
 district already under the authority of any sub-commissioners appointed by either commissioners, 
 of the said corporations shall be extended, except with such consent as aforesaid ; 
 and no sub-commissioners appointed or to be appointed by the Trinity Houses of 
 Hull and Newcastle shall be deemed to be pilotage authorities within the meaning 
 of this Act, nor shall anything in tliis Act contained be held to confer upon the 
 commissioners for regulating the pilotage of the port of Kingstou-upon-Hull and 
 of the river Humber, any jurisdiction of a different natiu'e or character from that 
 which they have heretofore exercised. 
 
 Saving of Oivners' and Masters' Rights. Savina of 
 
 Owners' and 
 388. No owner or master of any ship shall be answerable to any person what- Bights. 
 ever for any loss or damage occasioned by the fault or incapacity of any qualified . . — — 
 pilot, acting in charge of such ship, within any district (c) where the employment lability of °^ 
 of such pilot is compulsory b}"^ law. {d) owner where 
 
 pilotage Is com- 
 pulsory. 
 
 (b) See 35 & 36 Vict. c. 73, s. 10. (d) See ante, p. 165. See The Conservatois of 
 
 (f) For pilotage purposes Gravesend is the the River Thames y. Hall, Zl h. J. C.P.ie3,a.c{ise 
 
 eastern limit of the port of London : General on the construction of the Thames Conservancy 
 
 Stfam Navigation Co. v. British, dc, Co., 38 Act, 1867. 
 
 L. J. Ex. 97 ; 37 L. J. Ex. 94.
 
 722 
 
 M. S, ACT, 1854, PAET G, 
 
 PART VI. 
 
 LIGHTHOUSES. 
 
 Managemfnt of 
 Lighthouses. 
 
 Management of 
 lighthouses, 
 buoys, and 
 beacons, to be in 
 Trinity House, 
 Commissioners 
 of Korlhem 
 Lighthouses,and 
 Port of Dublin 
 Coi-poration. 
 Incorporation of 
 Korthem Liaht- 
 houses, and Port 
 of Dublin 
 Coi-poration. 
 
 Incorporation of 
 Commissioners 
 of Northern 
 Lighthouses. 
 
 Power to elect 
 certain new 
 members. 
 
 Tiinity House 
 may inspect 
 lighthouses in 
 Scotland and 
 Ireland. 
 
 Board of Trade 
 m.ay appoint 
 persons to in- 
 spect light- 
 houses, &c. 
 
 Ma')iagerae)it of Lighthoiises. 
 
 389. Subject to the provisions herein-after contained, and subject also to any 
 powers or rights now lawfully enjoyed or exercised by any person or body of 
 persons having by law or usage authority over local lighthouses, buoys, or beacons, 
 herein-after termed " local authorities," the superintendence and management of 
 all lighthouses, buoys, and beacons shall be vested in the following botlies ; (that 
 is to say,) 
 
 In England and Wales, and the islands of Jersey, Guernsey, Sark, and Aldemej-, 
 and the adjacent seas and islands, and in Heligoland and Gibraltar, in the 
 Trinity House : 
 In Scotland and the adjacent seas and islands, and in the Isle of Man, in the 
 
 Commissioners of Northern Lighthouses hereinafter mentioned : 
 In Ireland and the adjacent seas and islands, in the Port of Dublin Cor- 
 poration : (a) 
 And subject to the provisions herein-after contained, the said Trinity House com- 
 missioners and corporation (lierein-after termed general lighthouse authorities) 
 shall respectively continue to hold and maintain all property now vested in them 
 in that behalf, in the same manner and for the same pui'poses as they have liitherto 
 held and maintained the same. 
 
 390. The persons holding the following offices shall be a body corporate imder 
 the name of the Commissioners of Northern Lighthouses ; (that is to say,) 
 
 (1.) The lord-advocate and the solicitor-general for Scotland ; 
 
 (2.) The lords provosts of Edinburgh and Glasgow, and the provosts of tlie 
 
 cities of Aberdeen, Inverness, and Campbelto^vn ; 
 (3.) The eldest bailies of Edinburgh and Glasgow ; 
 
 (4.) Tlie sheriffs of the counties of Edinbui-gh, Lanark, Eenfrew, Bute, Argyle, 
 Inverness, Eoss, Orkney, Caithiress, Aberdeen, Ayr, Fife, Forfar, Wigton, 
 Sutherland, Kincardine, Kirkcudbright, and Elgin ; 
 And shall have a common seal ; and any five of such commissioners shall con- 
 stitute a quoi-um, and shall have jwwer to do all such matters and things as might 
 be done by the whole body of commissioners. 
 
 391. In addition to the persons above-mentioned, it shall be lawful for the said 
 commissioners at any time after this Act comes into operation to elect the provost 
 or chief magistrate of any royal or parliamentary burgh on or near any part of the 
 coasts of Scotland and the sheritf of any county abutting on such coasts. 
 
 392. The Trinity House, theu- engineers, workmen, and servants, may at aU 
 times enter any lighthouses within the jurisdiction of the said commissioners or 
 corporation to view the condition thereof or othei-n-ise for the pm-poses of tliis 
 Act. 
 
 393. The Board of Trade may, upon complaint to the eftect that any light- 
 house, buoy, or beacon, mider the management of any of the said general light- 
 house authorities, or any work connected there^\■ith, is inefficient or imjjroperly 
 managed or unnecessary, authorize persons to inspect the same ; and every person 
 so authorized may inspect the same accordingly, and make such inquii-ies in 
 respect thereof, and of the management thereof, as he may think fit ; and all 
 officers and others ha%Tng the care of such lighthouses, buoys, or beacons, or 
 concerned in the management thereof, shall furnish all such information and 
 explanations in relation thereto as he may recpiire ; and the said general light- 
 house attthorities and their respective officers shall at all times give to the Board 
 of Trade all such returns, explanations, or information, in relation to the light- 
 houses, buoys, or beacons, within theii- jurisdiction, and the management thereof, 
 as such board may from time to time requu-e. 
 
 (a) Now commissioners of Ii-ish lights ; see ante. p. 633, note (r).
 
 17 & 18 VICT. c. 104. 723 
 
 394. Each of the said general lighthouse authorities, upon giving due notice of Power to 
 their intention, shall have power, with the sanction of the Board of Trade, to ifg^fe^amhori- 
 compel any local authority having jurisdiction in the matter of lighthouses, buoys, tiesto'controi 
 or beacons, at any place situate withui the jurisdiction of such general lighthouse 190*1 autuo- 
 authority, to lay down buoys, or to remove or discontinue any existing lighthouse '' ^^^^ > 
 or beacon, or to make any variation in the character of any lighthouse, or in the 
 nxode of exhibiting liglits therein ; and no such local authority as aforesaid shall 
 erect any new lighthouse, or remove or discontinue any lighthouse, or vary the 
 character of any lighthouse, or the mode of exhibiting lights therein, without the 
 sanction of the general lighthouse authority within whose jurisdiction the same 
 is situate. 
 
 395. 
 lighthouse, 
 
 general lighthouse authorities fails so to do, or fails to obey any direction given ))y lighthouses may 
 such authority under the last preceding section, H. M.'may, upon application I'e tnmsfen-ed^^ 
 from such general lighthouse authority, by order in council direct that such power hoSse authori- 
 as aforesaid shall be transferred to such last-mentioned authority ; and such ties, 
 power, together with all powers of levying and receiving dues in respect of such 
 lighthouse, buoy, or Ijeacon, shall thereupon become vested in such last-mentioned 
 authority ; and such lighthouse, with its appurtenances, and also such buoy or 
 beacon, and all dues leviable in respect thereof, shall thenceforth be subject in aU 
 respects to the same regulations as other lighthouses and light dues, buoys and 
 beacons provided for by tliis Act. 
 
 Light Dues, (c) 
 
 Light Dues. 
 
 396. Subject to any alterations to be made imder the powers hereinafter con- f^^t^° ^^ 
 taitied, the said general lighthouse authorities shall, in respect of the existing 
 lighthouses, buoys, or beacons, Avithin their respective jurisdictions, continue to 
 
 levy dues, hereinafter called light dues, after the rate at which the same are 
 levied at the time when tliis Act comes into operation ; and such light dues shall 
 be payable in respect of all ships whatever, except ships belonging to H. M., 
 and ships hereby exempted from payment thereof. 
 
 397. H. M. nray, by and with the advice of her privy council, from time LigW 'lues to be 
 to time reduce all or any of the dues for the time being payable in respect of If^^'^^y ha^*^^^' 
 existing or future lighthouses, buoys, or beacons, for the time being under the Majesty in 
 management of the said general lighthouse authorities ; and may also, by and council. 
 
 with the like advice, from tune to time increase or vary any of such dues, so that 
 no dues payable iir respect of any lighthouse, buoy, or Ijeacon existing at the time 
 when this Act comes into operation are made to exceed the amount which has at 
 any period previous to such time been received in respect thereof, or to which the 
 said dues might during any part of such period as last aforesaid lawfully have 
 been raised. 
 
 398. Each of the said general lighthouse authorities shall have power, ■with Powers of 
 the consent of H. M. in council, to do any of the following things ; (that is houseliuthori- 
 
 to say), ties to alter and 
 
 To exempt any sliips or any classes of ships from the payment of light dues ^'^S^'^'^^^ "'^'^^• 
 receivable by such authority, and to annex any terms or conditions to such 
 exemptions ; 
 
 To alter the times, places, and modes at and in which the light dues receiv- 
 able by such authority are payable ; 
 
 To substitute any otlier dues or class of dues, whether by way of amiual pay- 
 ment or otherAvise, in resjject of any ships or classes of ships, for the dues 
 payable to such authority for the time being. 
 
 399. Tables of all light dues, and a copy of the regulations for the time being Publication of 
 in force in respect thereof, shall be posted up at all custom houses within the ^ons.^^"^ reguia- 
 
 (b) Sec 25 & 26 Vict. c. 63. s. 43, pout. 
 
 (.c) As to Colonial Lighthouses and Dues, see 18 & 19 Vict, c, 31. 
 3 A 2
 
 724 
 
 :\r. s. ACT, 1854, part 6. 
 
 Ship not to be 
 cleared without 
 production of 
 receipt for light 
 dues. 
 
 Power of dis- 
 tress for light 
 dues («). 
 
 Light dues, how 
 to be paid over 
 :ind accounted 
 for. 
 
 Application of 
 light dues. 
 
 U. K. ; and each of the said general lighthouse authorities shall from time to 
 time, as occasion requires, furnish copies of such tables and regulations to the com- 
 missioners of customs in London, and to the principal oihcers of customs resident 
 at all places where light dues are collected on account of such lighthotise authority ; 
 and such copies shall be poste:! up by the commissioners at the custom house in 
 London, and by such officers at the custom houses of the places at which they are 
 respectively resident. 
 
 400. A receipt for light dues shall be given by the person appointed to collect 
 the same to every person paying the same and no officer of customs at any port 
 where light dues are payable in respect of any ship shall grant a clearance or 
 transire for any such snip, unless the receipt for the same is produced to him. 
 
 401. If the owner or master of any ship fails on demand of the authorized col- 
 lector to pay the light dues due in respect thereof, it shall be lawful for such 
 collector, in addition to any other remedy which he or the authority Iry whom he 
 is appointed is entitled to use, to enter upon such ship, and distrain the goods, 
 guns, tackle, or any other thing of or belonging to or on board such .ship, and to 
 detain such distress until the said light dues are paid ; and if payment of the 
 same is not made witliin the period of three days next ensuing such distress, lie 
 may, at any time dtiring tlie contmuance of such non-payment, cause the same to 
 be appraised by two sufficient persons or sworn appraisers, and thereupon sell the 
 same, and apply the proceeds in payment of the light dues due, together with 
 reasonable expenses incurred bj' liim under this section, paying the surplus (if 
 any) on demand to the said owner or master. 
 
 402. Every person appointed to collect light dues by any of the said general 
 lighthouse authorities shall collect all light dues payable at the port or place at 
 which he is so appointed, A\'hether the same be collected on account of such last- 
 mentioned authority or of the other general lighthouse authorities, and shall ]3ay 
 over to the general lighthouse authority by whom he was appointed, or as it 
 directs, the whole amount of light dues received by him ; and the authority so 
 receiving the same shall keep accounts thereof, and shall cause the same to be 
 remitted to H. M.'s paymaster-general in such manner as the Board of Trade 
 directs. 
 
 403. All light dues coming to the hand'^ of any of the said general lighthouse 
 authorities under this Act shall be carried to the account of the mercantile 
 marine fund hereinafter mentioned, and shall be dealt with in manner hereinafter 
 prescribed. 
 
 Xeic Light- 
 hnuses. 
 
 Power to light- 
 house authori- 
 ties to erect, 
 place and alter 
 lighthouses, 
 buoys, and 
 beacons. 
 
 Construction of and Dues (b) for New Lighthonses. 
 
 404. Each of the said general lighthouse authorities shall liave power, within 
 its jurisdiction, to execute the following works and do the following things ; (that 
 is to say,) 
 
 (1.) To erect or place new lighthouses, with all requisite works, roads, and 
 
 appurtenances, or alter or remove any existing lighthouses : 
 (2.) To erect or place any new buoys or beacons, or alter or remove any existing 
 
 buoys or beacons : 
 (3.) To take and piuxhase any land which may be necessary for the above 
 purposes, or for the maintenance of the works or the residence of the 
 light keepers : 
 (4.) To vary the character of any lighthouse or the mode of exhibiting lights 
 
 therein : 
 (5.) To sell any land belonging to it : 
 But the exercise of the above power shall, in the case of the said commissioners 
 and corporation, be subject to the restrictions hereinafter contained. 
 
 (a) As to the persons liable to light dues, &c., 
 Pce 2.5 & 26 Vict. c. 63, sects. 44-^7, post. 
 
 (b) See 39 &; 40 Vict. c. 27. an Act to authorize 
 the reduction of the local light dues. See 30 & 31 
 
 Vict. c. 15, an Act for the abolition of certain 
 exemptions from local dues on shipping and on 
 good'* carried in shij^s.
 
 17 & 18 VICT. c. 104 725 
 
 , 405. Previously to undertaking any such work as aforesaid, the said com- Tins power, in 
 niisssoners or corporation (c), as tlie case may he, shall forward a notice specifying commfsl^ioners* 
 fully the nature of the work proposed to be undertaken by them, and their reasons and corporation, 
 for undertaking the same, to the Trinity House, who shall take the proposed to be s^ubjoct to 
 scheme into their consideration, and notify to the said commissioners or corpora- Tinnity'^Hoiisc, 
 tiou(c) their apj^roval or rejection thereof with or without modifications ; but no such with appeal to 
 notification shall be binding on the said commissioners or corporation (c) until the ^°^^'^ °^ Trade, 
 same has been sanctioned by the Board of Trade in manner hereinafter mentioned ; 
 and at any time previous to such sanction being given, the said commissioners or 
 corporation (c) may forward to the Trinity House and the Board of Trade, or either 
 of them, any ol^jections to, or observations upon, or suggestions in respect of such - 
 notification. 
 
 406. In order to obtain such sanction as aforesaid, the Trinity House shall |j,aj4'"o" ^rade 
 forward a copy of their notification, accompanied by copies of all communications ijo^ ^^ ^j. ^b- ' 
 that have passed between the Trinity House and the said commissioners or cor- taincd. 
 poration (c), to the Boai'd of Trade ; and such board shall have power to give any 
 directions they may think fit in relation to the matters submitted to them, by 
 
 granting or withholding their sanction, either wholly or partially, and either with 
 or without modification. 
 
 407. The Trinity House shall forthwith commimicate the directions given by Trinity House to 
 the Board of Trade in relation to the matters aforesaid to the said connnissioners jJJj^i^Je^authori- 
 or corporation (c), and the said commissioners orcorporation (c) shall, uponthe receipt ties of decision 
 of such directions, be bound to act in conformity therewith, and to do or forbear ^^j.^^^^*^''^ '^^ 
 doing anything thereby directed to be done or forborne. 
 
 408. The Trinity House shall have power to direct the said commissioners Po^er to 
 
 and corporation (c), or either of them, to execute the following works ; (that is to say,) wKh' sanction of 
 
 (1.) To continue anj^ existing lighthouses, buoys, or beacons : Board of Trade, 
 
 (2.) To erect or place any new lighthouses, buoys, or beacons, or alter or remove c°jt*Jon of works 
 
 any existing lighthouses, buoys, or i)eacons : by commis- 
 
 (3.) To vary the character of any lighthouse, or the mode of exhibiting lights sioners and 
 H, ''• J o 1 o o corporatiou. 
 
 therein : 
 
 But no such direction shall be issued to the said commissioners or corporation (c) 
 
 until the issue thereof has been sanctioned by the Board of Trade ; such sanction 
 
 to be obtained by the Trinity House in manner hereinafter mentioned. 
 
 409. Previously to issuing any such dii'ections as aforesaid, the Trinity House Sanction of 
 shall make an application to the Board of Trade, stating fully the nature of the ?°^''j^*^^ i^r:a.Ati 
 work to which such directions relate and their reasons for directing the same ; obtained, 
 and shall at the same time give notice to the said commissioners or corporation {<•) 
 respectively of such their application, by causing written notice of the said appli- 
 cation and a copy of the proposed du'ections to be left at or sent to the office of 
 
 the said commissioners in Edinburgh, or the office of the said corporatiou (c) ui 
 Dublin, as the case may be ; and oppportunity shall be afibrded to the said com- 
 missioners or corporation to submit any observations they may see fit to make 
 with respect to such application to the Trinity House and the Board of Trade ; 
 and if thereupon the said Trinity House adhere to their said directions, and if tlic 
 Board of Trade conciu' therein, and if such adherence and concurrence is duly 
 notified to the said commissioners or corporation (c), it shall be their duty Avithiii a 
 reasonable time after such notification is made to carry the said directions into efiec i . 
 
 410. Upon the completion of any new lighthouse, buoy, or beacon, H. M. may n. m. may by 
 by order in council fix such dues in respect thereof to be paid by the master or order in 
 owner of every ship which passes the same or derives benefit therefrom, as H. M. 1^° be^Jakg,/'"'^^'' 
 may deem reasonable, and may from time to time alter the amount thereof ; and for new light- 
 such dues shall be paid and collected in the same manner, by the same means, and houses, 
 subject to the same conditions in, by, and subject to which tlie light dues 
 authorized to be levied by this Act are paid and collectud. 
 
 411. No dues for any lighthouse, buoy, or beacon to be erected or placed in or No dues to bo 
 near the islands of GuerJisey, Jersey, Sark, or Alderney shall be taken in the said ch^"J,),yj^]^jjj3 
 islands of Guernsey or Jersey without the consent of the states of the said without consent 
 islands respectively ; nor shall any powers hereinbefore given to the Trinity of the states, and 
 House in respect of any lighthouse, buoy, or beacon erected or placed in the "xerciJcd ^'^ '^"^ 
 
 (c) Sec ante, p. 722, note (f ).
 
 726 
 
 M, S. ACT, 1854, PAET 6, 
 
 therein but by iskviid ol' Ciucrn.sey or Jersey, or hereal'ter to Le erected or placed in such islands, 
 order iu council, be exercised ^vithout the consent of H. M. in council. 
 
 incoi-poration of 412. The Liuids Clauses Consolidation Act, 1845, and the Lands Clauses Con- 
 8 & 9 Vict. cc. jiolidation Act (Scotland), 1845, shall be incorporated in this Act, and shall apply 
 
 to all lighthouses to be constructed and all land to be purchased luider the 
 
 powers thereof. 
 
 18 & 19. 
 
 Surrender 
 
 of Local 
 
 Lighthouses, 
 
 Local light- 
 houses may be 
 surrendered to 
 general light- 
 house authori- 
 ties. 
 
 Surrender of Local Lighthouses. 
 
 413. Every local authority holding any lighthouse, buoy, or ))eacon at any place 
 within the Jurisdiction of any of the said general lighthotise authorities luay, if 
 they think tit, siuiender or sell the same to such general lighthouse authority, 
 and such authority uuiy, with the consent of the Board of Trade, accept or piu'- 
 chase the sanit, the purchase money (if any) to be paid out of the said mercantile 
 marine fund ; and thereupon such lighthouse and its appurtenances, or such buoy 
 or beacon as tlie case may be, shall become vested in such authority ; and such 
 authority shall be entitled to receive all dues lawfully payable in respect thereof 
 at the time of such surrender or sale, or if H. M. by order in council so directs, 
 such dues as might be fixed and made payable if the same were a new lighthouse, 
 buoy, or beacon ; and such lighthouse, buoy, or beacon, and the dues payable in 
 respect thereof, shall, after such surrender or sale, be subject in all respects to the 
 same regulations as other lighthouses and light dues, buoys, and beacons provided 
 for by this Act, 
 
 Damaoc to 
 
 Lights, Buoijs, 
 
 and Beacons. 
 
 Penalty for 
 injuring lights, 
 buoys, and 
 beacons. 
 
 Damage to Lights, Buoys, and Beacons. 
 
 414. If any person wiKully or negligently commits any of the following ofl'ences, 
 (that is to say,) 
 
 (1.) Injures any lighthouse or the lights exhibited therein, or any buoy or 
 beacon ; 
 
 (2.) Eemoves, alters, or destroys any light ship, buoy, or beacon ; 
 
 (3.) Rides by, makes fast to, or runs foul of any light ship or buoy ; 
 He shall in addition to the exjienses of making good any damage so occasioned, 
 incur a penalty not exceeding 50^. 
 
 Prevention of 
 False Lights. 
 
 General light- 
 house 
 
 authorities may 
 prohibit 
 false lights. 
 
 Prevention of False Lights (ci). 
 
 415. Whenever any fire or light is burnt or exhibited at such place or in such 
 manner as to be liable to be mistaken for a light proceeding from a lighthouse, it 
 shall be lawful for the general lighthouse authority within whose jurisdiction 
 such place is situate, to serve a notice upon the owner of the place 
 Avhere the fire or light is burnt or exhibited, or on the person haAang the charge 
 of such fire or light, either personally or by delivery at the place of abode of such 
 owner or person, or by affixing the same in some consj^icuotts spot near to such 
 fire or light, and by such notice to direct such OAvner or person, within a reason- 
 able time to be therein specified, to take etfectual means for the extiuguisliing or 
 efl'ectually screening such existing light, and for preventing for the futiu-e any 
 similar fire or light ; and any owner or person disobeying such notice shall be 
 deemed guilty of a common nuisance, and in addition to any other penalties or 
 liabilities of anv kind thereby incurred, shall inciu- a penalty not exceeding 
 JIOO. 
 
 (a) By 24 & 25 Vict. c. D7. s, -IT, exhibiting false ?ignn!s, &c.; la au offence. SccSKuss. on Crimes 
 by PrcnticC: p. 0f9.
 
 17 & 18 VICT. c. 104. 727 
 
 416. If any ovmcv or person served with sucli notice as aforesaid neglects for a if not obeyed 
 period of seven days to extingiiisli or effectually screen tlie fire or light therein gjj^^lfg^f^g^^^" 
 mentioned, it shall he lawfid for the general lighthouse authority within whose 
 jurisdiction the same may be, by their servants or Avorkmen, to enter upon the 
 "place whereon the same may be, and forthwith to extinguish such fire or _ light, 
 doing no unnecessary damage ; and all expenses incurred by such authority in 
 such extinction may be recovered from such person or owner as aforesaid in the 
 same way as penalties are hereby directed to be recoverable. 
 
 PART VII. 
 
 MERCANTILE MARINE FUND, Mercantile 
 
 marine fund, 
 
 417. The following sums shall be carried to a common fund, to be entitled the Sums to bo 
 " Mercantile Marine Fund ;" (that is to say,) — _ mercantile 
 
 (1.) All fees and other sums (other than fines and forfeitures) received by the marine fund. 
 
 Board of Trade under the provisions of the 3rd and 4th parts of this Act : 
 (2.) All light dues or other sums received by or accruing to the Trinity House, 
 
 the Commissioners of Northern Lighthouses, and the Port of Dublin 
 
 Corporation, (6) mider the 6th part of this Act : 
 (3.) All rates and monies received by the Trinity House under the local Act 
 
 of the 7th year of Her present Majesty, chapter 57, for the regulation of 
 
 lastage and liallastage in the river Thames : 
 (4.) All fees and other sums mentioned in the table marked V. in the shedule 
 
 hereto which are received by receivers aj)pouited under the 8th part of 
 
 this Act : 
 And an account of the said fund, intituled " The Mercantile Marine Fund Ac- 
 count," shall be kept with Her Majesty's paymaster-general. 
 
 418. Subject to any prior charges that may be subsisting thereon by virtue of Application of 
 any Act or Acts of parliament or otherwise, the said fund shall be chargeable ^^rine fund 
 AAith the following expenses ; (that is to say,) — 
 
 (1.) The salaries and other expenses connected with the local marine boards, 
 the examinations, and the shipping offices, (c) provided for by the 3rd part 
 of this Act : 
 
 (2.) Kepealed by 39 & 40 Vict. c. 80, s. 45. 
 
 (3.) All expenses incurred by the general lighthouse authorities aforesaid in the 
 works aitd services of lighthouses, buoys, and beacons provided for by 
 the 6th part of this Act, or in the execution of any works necessary or 
 expedient for the purpose of permanently reducing the exjpcnse of such 
 Avorks and services : 
 
 (4.) All expenses incurred by the Trinity House in respect of lastage and bal- 
 lastage in the river Thames : 
 
 (5.) Such expenses for establishing and maintaining on the coasts of the U. K. 
 proper life-boats, with the necessary crews and equipments, and for 
 affording assistance towards the preservation of life and property in cases 
 of shipwreck and distress at sea, and for rewarding the preservation of 
 life in such case as the Board of Trade dii-ects : 
 
 (6.) Any expenses inciu'red in carrying into effect the provisions with regard 
 to receivers and the perfoimance of their duties contained in the 8th 
 part of this Act : 
 
 (7.) Any expenses which by this or any other Act of parliament are specially 
 charged thereon : (d) 
 And shall, save as hereinafter mentioned, be applicable to no other purpose 
 whatever. 
 
 (6) See ante p. 722, note (a). (,7) See 1? & 18 Vict. c. 120, s. 7 ; 39 * 10 Vict, 
 
 (c) Now mcrcaatile marine offices ; seo 26 & 20 c, 80, s. 39. 
 Vict. c. 63, s. 16.
 
 728 
 
 M. y. ACT, 1854, PART 7, 
 
 Applicaiiou of 
 
 ballastagc 
 
 rates. 
 
 Eblablishmeuts 
 for lighthouses 
 and ballastagc 
 charged on fund 
 to I e fixed by 
 Her Majesty in 
 conncil. 
 
 Power to grant 
 superannuation 
 allowances. 
 
 Estimates and 
 accounts for 
 other expenses 
 to be approved 
 by the Board 
 of Trade. 
 
 No expense to 
 be allowed unless 
 sanctioned by 
 Board of Trade. 
 
 i'or the purpose 
 of erecting and 
 repairing 
 lighthouses 
 and other 
 extraordinary 
 expenses. 
 Treasuiy may 
 advance money. 
 
 419. The .said rules and moneys received by the Trinity House under the said 
 local Act of the 7th year of Her present Majesty, chapter 57, shall, subject to the 
 payment of such proportion of any prior charges subsisting on the mercantile 
 marine fund as may, in the opinion of the Board of Trade, be fairly chargeable 
 thereon, and to the powers of raising money upon the credit of the said fund 
 herein contained, be applicable only to services performed for the purpose of 
 supplying ballast to or for providing for the safety or convenience of such ships 
 as navigate the said river Thames, and the seas and channels leading thereto 
 between Orfordness on the north, and Dungenees on the south : pro^•ided that if, 
 in addition to the duties performed in consideration of the said ballastagc rates 
 under the said local Act, the Trinity Hotise, at the request or with the consent of 
 the owners or masters of or agents lor any ships, undertake to phicc ballast on 
 board thereof, or to unload ballast therefrom, they shall be entitled to charge for 
 such additional duties such reasonable additional rate -per ton for ballast so placed 
 on board or unladen as H. M. by order in council from time to time approves. 
 
 420. Her I\Iajesty may from time to time, by and ^\ith the ad\acc of her privy 
 council, fix the estalilishments to be maintained by each of the said general light- 
 house authorities, on account of the services of Lighthouses, buoys, and beacons, 
 and also as regards the Trinity House on account of the serAace of lastage and 
 ballastagc in the river Thames, or the annual or other sums to be paid out of the 
 said fund, in respect of such establishments ; and if it appears that any part of 
 the establishments of the said lighthouse authorities is maintained for the pur- 
 poses of such duties and also for other purposes, to fix and from time to time 
 alter the portion of the expense of such establishments, to be paid out of the said 
 fund ; and no increase of any establishment or part of an establisliment so fixed 
 shall be made without the consent of the Board of Trade. 
 
 421. The said general lighthouse authorities may from time to time, Avith the 
 sanction of the Board of Trade, grant superannuations or compensations to per- 
 sons whose salaries are payable out of the said fund, and who are discharged or 
 retire ; so nevertheless that no superannuation allowance or compensation to any 
 person so discharged or retiring shall exceed the proportion of his salary which 
 might be granted to a person in the public civil service, imder the Act of the 4 & 5 
 Will. 4, c. 24, or under any other Act for regulating such superannuation allow- 
 ances or compensations for the time being in force. 
 
 422. Each of the said general lighthouse authorities shall from time to time 
 submit to the Board of Trade estimates nf all expenses to be incurred by them in 
 respect of the matters aforesaid, other than the establishment expenses for the 
 time being allowed by order in council as aforesaid ; and shall also, whenever, in 
 providing for any sudden emergency, it is necessarj^ to incur any expense without 
 waiting till an estimate can be sanctioned, as soon as possible send to the Board 
 of Trade a full account of such expense ; and the Board of Trade shall consider 
 and may approve such estimates and accoimts, either with or without modifi- 
 cation. 
 
 423. No ex|3ense of any of the said general lighthouse authorities in respect of 
 the said services shall be paid out of the mercantile marine fund, or allowed in 
 account, other than the sums so allowed for establishment expenses as aforesaid, or 
 included in estimates or accounts approved by the Board of Trade. 
 
 424. For the purpose of the construction and rejmir of lighthouses, and of other 
 extraordinary expenses connected with the said sendees, the Treasury are autho- 
 rized from time to time, upon the application of the Board of Trade, to advance 
 out of the growing produce of the consolidated fund of the U. K. such sums of 
 ntoney, upon such tenus and at such rate of interest as they think fit, and to pay 
 the same into the mercantile marine fund account, so nevertheless that the whole 
 sum for the time being due in respect of such advances shall never at any one time 
 exceed 200,000Z. ; and upon any advance being so made the sixm so advanced 
 and the interest shall be a charge on the mercantile marine fund, and upon 
 the dues, rates, fees, and payments so to be carried thereto as aforesaid; 
 and the Boaid of Trade shall make such provision for the re-payment thereof out 
 of the said fund, either by forming a sinking fund or othenvise, as the treasury 
 may require ; pio\ided that no such advance shall prevent any lawful reduction 
 of any of the said dues, rates, fees, or payments, if such reduction be assented to 
 by the Treasury.
 
 17 & 18 VICT. c. 101. 729 
 
 425. The Board of Trade may also for the purpose last aforesaid raise money Power to Board 
 by mortgaging the mercantile marine fund, and the several dues, rates, fees, and boiTow money 
 l^ayments so to be carried thereto as aforesaid, or any of them, or any part thereof, on tho credit of 
 to any person or body of persons, and every such mortgage shall be in such form, the fund. 
 
 and under the hand and seal of such person or persons, as the president of the said 
 board for the time being may direct ; and no person or body of persons lending 
 money upon any such morl;, vi^-e shall be bound to see to the purpose for which the 
 same is raised, or to the motle in which it is applied. 
 
 426. The public works loan commissioners may also, for the purpose last ^^ks loan ""^''^ 
 aforesaid, advance money upon mortgage of the said mercantile marine fund, commisioners 
 and the several dues, rates, fees, and payments so to be carried thereto, as to advance 
 aforesaid, or any of them, or any part thereof, without recj^uiring any further security J?Jedft^ Xtuo*^ 
 than sitch mortgage as aforesaid ; bttt every mortgage so made to the said public fund. 
 
 works loan commissioners, or their secretary for the time Ijeing, shall be made 
 under and in pursuance ot the Acts of parliament regulating the proceedings of 
 the said pttblic works loan commissioners, anything herein contained to the con- 
 trary notwithstanding : provided, that no advance Avhich may be made by the said 
 public works loan commissioners shall prevent any lawfitl redtiction of any of the 
 said dues, rates, fees, or payments, if sttch reduction is assented to by the said 
 public works loan commissioners. t vi, v, 
 
 427. Each of the said general lighthouse authorities shall account to the Board authoritief to 
 of Trade for their receipts from the said light dttes and ballastage rates, and for account for 
 their expenditure as regards expenses paid oat of the said fund, in such form, and i™''^^"'? 
 
 at such times, and with such details, explanations, and vouchers, as the Board of Board of Trade. 
 Trade requires, and shall, when required by such board, permit all books of 
 accounts kept by or under their respective direction to be inspected and examined 
 by such persons as the said board appoints for that purpose. 
 
 428. The Board of Trade shall render to the conmiissioners for auditing the ^,"^^^^^^^3^°^ 
 public accounts periodical accounts of the whole of the receipts and expenditure audited by 
 
 of the mercantile marine fund, such accounts to be signed and declared to by the commissioners 
 accountant appointed by the Board of Trade for tliat purpose ; and in case of ° ^" ' • 
 default it shall be lawful for the treasury to make or direct such allowance as 
 under the circumstances of the case they may think fit in respect thereof. 
 
 429. The Board of Trade shall, as soon as practicable after the meeting of Accounts to be 
 2)arliament in ever}^ year, cause the account of the mercantile marine fund for the parij^^nfent 
 then preceding year to be laid before both houses of parliament. 
 
 430. All ligiithouses, buoys, beacons, and light dues, and all other rates, fees, or Property used 
 payments accruing to or forming part of the said fund, and all premises or pro- ofVarts'lll'*'^'^^ 
 perty belonging to or occupied by any of the said general lighthouse authorities and Vi. of Act 
 or the Board of Trade, which are used or applied for the purjioses of any of the *» be exempt 
 services for which such dues, rates, fees, and payments are received, and all amftaxei^ ^^ 
 instruments or writings used by or under the direction of any of the said general 
 lighthouse authorities or the Board of Trade in carrying on the said services, 
 
 shall Ije exempted from all public, parochial, and local taxes, duties, and rates of 
 every kind. 
 
 431. The ships belonging to or used by any of the said general lighthouse j^JjJJ^^I^^^'^sh t« 
 authorities, or by the Board of Trade, shall be privileged to enter, resort to, and rities exempt 
 use any harbours, ports, docks, or piers in the U.K., without payment of any tolls, fi'om harbour 
 dues, or rates of any kind. dues (a). 
 
 (a) See 25 & 26 Vict. c. 63, s. 48, post.
 
 730 
 
 M. S. ACT, 1854, PART 8, 
 
 PART VIII. 
 
 WRECKS, CASUALTIES, AND SALVAGE. 
 
 Inquiries into 
 Wreck. 
 
 Inquiries to be 
 instituted in 
 cases of wreck 
 and casualty (a). 
 
 Foniial investi- 
 gation before 
 justices {J}). 
 
 Stipendiary 
 magistrate to 
 be the magis- 
 trate who is 
 member of 
 local marine 
 board, and to 
 be paid. 
 
 Costs of such 
 investigations. 
 
 Inquiries into IFrecJcs. 
 
 432. In any of the cases following ; (that is to say,) 
 
 Whenever any ship is lost, abandoned, or materially damaged on or near the 
 
 coasts of the U. K. ; 
 Whenever any shij) causes loss or material damage to any other ship on or near 
 
 such coasts ; 
 "Wlienever by reason of any casualty happening to or on board of any ship on 
 
 or near such coast loss of life ensues ; 
 Whenever any such loss, abandonment, damage, or casualty happens elsewhere, 
 and any competent ^vitnesses thereof arrive or are found at any place in 
 the U. K. ; 
 It shall lie lawful for the inspecting officer of the coast guard, or the principal 
 officer of customs residing at or near the place where such loss, abandomnent, 
 damage, or casualty occiUTed, if the same occm-red on or near the coasts of the 
 U. K., but, if elsewhere, at or near the place where such -tt-itnesses as aforesaid 
 anive or are found or can be conveniently examined, or for any other person 
 appointed for the purpose by the Board of Trade, to make mquiiy respecting .such 
 loss, abandonment, damage, or casualty ; and he shall for that purpose have all 
 the powers given by the first part of this Act to inspectors appointed by the said 
 board. 
 
 433. If it appears to such officer or person as aforesaid, either upon or without 
 any such preliminary inquiry as aforesaid, that a formal investigation is requisite 
 or expedient, or if the Board of Trade so directs, he shall apply to any two jus- 
 tices or to a stipendiary magistrate to hear the case ; and such justices or magis- 
 trate shall thereupon proceed to hear and tiy the same, and shall, for tliat 
 j)ur]3ose, so far as relates to the sunmioning of parties, compelling the attendance 
 of witnesses, and the regulation of the proceedings, have the same powers as if the 
 same were a proceeding relating to an offence or cause of complaint upon which 
 they or he have power to make a simimary conviction or order, or as near thereto 
 as circumstances permit ; and it shall be the duty of such officer or person as 
 aforesaid to superintend the management of the case, and to render such assistauce 
 to the said justices or magistrate as is in his poAver ; and, upon the conclusion of 
 the case, the said justices or magistrate shall send a report to the Board of Trade, 
 containing a full statement of the case, and of their or his o^iinion thereon, accom- 
 panied by such report of or extracts from the CAddence, and such observations 
 (if anv) as they or he may think fit. 
 
 434\ [Repealed by 39 & 40 Vict. c. 80, s. 45, 2}ost.] 
 
 435. In jilaces where there is a local marine board, and where a stipendiary 
 magistrate is a member of such board, all such investigations as aforesaid shall, 
 Avhenever he happens to be present, be made before such magistrate ; and there 
 siiall be paid to such magistrate, in respect of liis services under tliis Act, such 
 remuneration, whether by way of annual increase of salary or other-wise, as H. M.'s 
 secretary of state for the home department, with the consent of the Board of 
 Trade, may direct ; and such remuneration shall be paid otit of the mercantile 
 marine fimd. 
 
 436. Tlie said justices or magistrate may make such order with respect to the 
 costs of any such investigation or any poi-tion thereof as they or he may deem just, 
 and such costs shall be paid accordingly, and shall be recoverable in the same 
 manner as other costs incurred in summary proceedings before them or him ; and 
 
 (0) Sec 30 it 10 Vict. c. SO, s, 28.. ct seq.,2'0St. (&> Ex parte Fergueon, 40 L. J. Q, B. 105.
 
 17 '& 18 VICT. 0. 104. 731 
 
 the Bcoi'd of Trade may, if in any case it tliinks lit so to do, pay the expense of 
 any such investigation, and may pay to such assessor as aforesaid such remunera- 
 tion as it thinks tit. 
 
 437. In the case of any such investigation as aforesaid to he held in Scotland, investigations 
 the Board of Trade may, if it so thinks fit, remit the same to the lord advocate, ^^ Scotland, 
 to be prosecuted in such manner as he may direct [and in case he so requires, with . 
 
 the assistance of such person of nautical skill and knowledge as the Board of Trade 
 may appoint for the purpose] (c). 
 
 438. Such justices or magistrate as aforesaid may, or in Scotland such person or Master or mate 
 persons as is or are directed by the lord advocate to conduct the investigation may, ™^y be required 
 if they or he think fit, require any master or mate possessing a certificate of com- jicj^te to beheld 
 petency or sei'\'ice, Avhose conduct is called in question, or appears to them or him until close of 
 likely to be called in question, in the course of such investigation, to deliver such "^I'^^iy- 
 certificate to them or him, and they or he shall hold the certificate so delivered 
 
 until the conclusion of the investigation, and shall then either return the same to 
 such master or mate, or, if their report is such as to enable the Board of Trade 
 to cancel or suspend such certificate, under the powers given to such board 
 by the 3rd part of this Act, shall forward the same to the Board of Trade, to be 
 dealt with as such board tliinks fit ; and if any master or mate fails so to deliver 
 his certificate when so required, he shall incur a penalty not exceeding 50^. 
 
 Amwintment and Duties of Receivers (d). Appomtmcnt 
 
 ■'•' -^ ^ ' ami Duties of 
 
 Receivers. 
 
 439. The Board of Trade shall, throughout the U. K., have the general super- Board of Trade 
 intendence of all matters relating to wreck ; and it may with the consent of the superintendents 
 commissioners of H. M.'s treasury, appoint any officer of customs or of the coast power tokptioint 
 guard, or any ofiicer of inland revenue, or when it appears to such board to be receivers (c). 
 more convenient, any other person, to be a receiver of wreck in any district, and 
 
 to perform such duties as are hereinafter mentioned, and shall give due notice of 
 every such appointment. 
 
 440. No admiral, vice-admiial, or other person, vender whatever denomination, Admiral not to 
 exercising Admu'alty jurisdiction, shall, as such by himself or his agents, receive, wreck?°^" ' 
 take, or interfere with any wreck, except as hereinafter mentioned. 
 
 441. Whenever any ship or boat is stranded or in distress, at any place on the Duty of receiver 
 shore of the sea, or of any tidal water within the Kmits of the U. K., the receiver ^ stranded oimu 
 of the district within which such place is situate shall, upon being made acquainted distress. 
 
 with such accident forthwith proceed to such place, and upon his arrival there he 
 shall take the command of all persons present, and assign such duties to each 
 person, and issue such directions, as he may think fit, with a view to the preser- 
 vation of such ship or boat, and the lives of the persons belonging thereto, and 
 the cargo and apparel thereof ; and if any person wilfully disobeys such direc- 
 tions, he shall forfeit a sum not exceeding bOl. ; but it shall not be law"ful for such 
 receiver to interfere between the master of such ship or boat and his crew in 
 matters relating to the management thereof, unless he is requested so to do by 
 such master. 
 
 442. The receiver may, with a view to such preservation as aforesaid of the Towers of 
 ship or boat, persons, cargo, and apparel, do the following things ; (that is to say,) of such accident 
 
 (1.) Summon such number of men as he thinks necessary to assist him : to any ship or 
 
 (2.) Kequire the master or other person having the charge of any ship or boat '**■ 
 near at hand, to give such aid with liis men, ship or boats as may be in 
 his power : 
 (3.) Demand the use of any Avaggon, cart, or horses, that may be near at 
 hand : 
 And any person refusing, without reasonable cause to comply with any summons, 
 requisition, or demand so made as aforesaid, shall, for every such refusal, incur a 
 
 (<;) The part within brackets Is repealed by (rt) Sec instructions to receivers, Issued by 
 
 39 & 40 Vict. c. 80, s. 45. vost. Board of Trade, post. 
 
 (c) See 17 & 18 Vict. c. 120, s. 11, pod.
 
 732 
 
 M. S. ACT, 1854, PART 8, 
 
 All articles 
 washed on shore 
 or lost, or taken 
 from any >-hip 
 or boat to be 
 delivered to the 
 receiver. 
 
 Power of 
 receiver to 
 suppress plunder 
 and disorder by 
 force. 
 
 Certain officers 
 ti exeicise 
 powers of 
 receiver in his 
 absence. 
 
 Tower in case 
 of a ship being 
 in disti'ess to 
 pass over adjoin- 
 ing lands v\1th 
 cari'iages. 
 
 Penalty on 
 owners and 
 occupiers of 
 land refusing 
 to allow 
 carriages, &c., 
 to pahs 
 over then- 
 land. 
 
 penalty not exceeding lOOl. ; but no person shall be liable to pay any duty of 
 assessed taxes in respect of any «ucli waggon, cart, or horses, by reason of the user 
 of the same under this section. 
 
 443. All cargo and other articles belonging to such ship or boat as aforesaid, 
 that may be washed on shore, or otherwise be lost or taken from such ship or boat, 
 shall be delivered to the receiver ; and any person, whether he is the owner or not, 
 who secretes or keeps possession of any such cargo or article, or refuses to deliver 
 the same to the receiver or to any person authorized by him to demand the same, 
 shall incur a penalty not exceeding 100^. ; and it shall be lawful for such receiver 
 or other person, as aforesaid, to take such cargo or article by force from the person 
 so refusing to deliver the same. 
 
 444. Whenever any such accident as aforesaid occurs to any ship or boat, and 
 any person plunders, creates disorder, or obstructs the preservation of such ship, 
 boat, lives, or cargo, as aforesaid, it shall be lawful for the receiver to cause sucli 
 person to be apprehended, and to use force for the suppression of any such plun- 
 dering, disorder, or obstruction as aforesaid, with power to command all H. M.'s 
 subjects to assist him in the use of such force, and if any person is killed, maimed, 
 or hurt, by reason of liis resisting the receiver in the execution of the dutii'S 
 hereby committed to him, or any person acting under his orders, such receiver or 
 other person shall be freely and fully indemnified as well against the Queen's 
 Majesty, her heii's, and successors, as against all persons so killed, maimed, or hurt. 
 
 445. IDuring the absence of the receiver from the place where any such accident 
 as aforesaid occurs, or in places where no receiver has been appointed under this 
 Act, the following officers in succession, each in the absence of the other, in the 
 order in wliich they are named ; (that is to say,) any principal officer of customs 
 or of the coast guard, or officer of inland revenue, and also any shf-riff, justice of 
 the peace, commissioned officer on full pay in the naval service of H. M., or com- 
 missioned officer on full pay in the military ser-\-ice of H. ]\I., may do all matters 
 and things hereby authorized to be done by the receiver, with this exception, that, 
 with respect to any goods or articles belonging to any such ship or boat, the 
 delivery up of which to tbe receiver is hereinbefore required, any officer so acting 
 shall be considered as the agent of the receiver, and shall place the same in the 
 custody of the receiver ; and no person so acting as substitute for any receiver 
 shall be entitled to any fees payable to receivers, or be deprived by reason of his 
 so acting of any right to salvage to which he Avould otherwise be entitled. 
 
 446. Whenever any such accident as aforesaid occurs to any ship or boat, all 
 persons may, for the purpose of rendering assistance to sucii ship or boat, or 
 saving the lives of the persons on board the same, or the cargo or apparel thereoi', 
 unless there is some public road equally convenient, pass and repass, either witli 
 or without carriages or horses, over any adjoining lands, without being subject to 
 interruption by the owner or occupier, so that they do as little damage as possible, 
 and may also, on the like condition, deposit on such lands any cargo or other 
 article recovered from such ship or boat ; and all damage that may be sustained 
 by any owner or occupier in consec[uence of any such passing, or repassing or 
 deposit as aforesaid, shall be a charge on the ship, boat, cargo, or articles in respect 
 of or by wliich such damage Avas occasioned, and shall, in default of payment, be 
 recoverable in the same manner as salvage is hereby made recoverable ; and the 
 amount payable in respect thereof, if disputed, shall be determined in the same 
 manner as the amount of salvage ia hereby, in case of dispute, directed to be 
 determined. 
 
 447. If the owner or occupier of any land over which any person is hereby 
 authorized to pass or repass, for any of the purposes hereinbefore mentioned, does 
 any of the following things ; (that is to say,) 
 
 (1.) Impedes or hinders any such jierson from so passing or repassing, Avith or 
 without carriages, horses, and servants, by locking his gates, refusing, 
 upon request, to open the same, or otherwise however : 
 
 (2.) Impedes or hinders the deposit of any cargo or other article recovered from 
 any such ship or boat, as hereinbefore mentioned : 
 
 (3.) Prevents such cai'go or other article from remaining so deposited for 
 a reasonable time, imtil the same can be removed to a safe place of 
 public deposit : 
 He shall, for every such offence, incur a penalty not exceeding ltX»/. 
 
 I
 
 17 & 18 VICT. 0. 104. 733 
 
 448. Aay receivev, or In liU absence any justice of tlie peace, shall, as soon as power of 
 conveniently may be, examine upon oath (which oath they are hereby respectively receiver to 
 empowered to administer) any person belonging to any ship which may be or examination 
 may have been in distress on the coasts of the tJ. K., or any other person who »ith respect 
 may be able to give any accoimt thereof, or of the cargo or stores thereof, as to the ^°3^|.g^| '^n 
 following matters ; (that is to say,) 
 
 (1.) The name and description of the ship ; 
 
 (2.) The name of the master and of the owners ; 
 
 (3.) The names of the owners of the cargo ; 
 
 (4.) The ports or places from and to which the ship was bound ; 
 
 (5.) The occasion of the distress of the ship ; 
 
 (6.) The services rendered ; 
 
 (7.) Such other matters or circumstances relating to such ship, or to the cargo 
 on board the same, as the receiver or justice thinks necessary : 
 And such receiver or justice shall take the examination down in writing, and 
 shall make two copies of the same, of which he shall send one to the Board of 
 Trade, and the other to the secretary of the committee for managing the affairs of 
 Lloyd's in London, and such last-mentioned copy shall be placed by the said 
 secretary in some conspicuous situation for the inspection of persons desirous of 
 examining the same ; and for the piu'poses of such examination every such 
 receiver or justice as aforesaid shall have all the powers given by the first part of 
 this Act to inspectors appointed by the Board of Trade. 
 
 449. Repealed by 39 & 40 Vict. c. 80, s. 45, post. 
 
 45u. The following rules shall he observed by any person finding or taking pos- Rules to be 
 .session of wreck (5) within the U. K. ; (that is to say,)^ S'persons 
 
 (1.) If the person so finding or taking possession of the same is the owner, he finding wreck, 
 shall as soon as possible give notice to the receiver of the district within 
 which such wreck is found, stating that he has so found or taken pos- 
 .session of the same ;-and he shall describe in such notice the marks by 
 which such wreck is distinguished : 
 (2.) If any person not being the owner finds or takes possession of any wreck, 
 he shall as soon as possible deliver the same to such receiver as afore- 
 said : 
 And any person making default in obeying the provisions of this section shall 
 incur the following penalties ; (that is to say,) 
 
 (3.) If he is the owner, and makes default in performing the several things, the 
 performance of which is hereby imposed on an owner, he shaU incur a 
 penalty not exceeding 100/. 
 (4.) If he is not the owner and makes default in performing the several things, 
 the performance of which is hereliy imposed on any person not being an 
 owner. 
 
 He shall forfeit all claim to salvage ; 
 
 He shall pay to the owner of such wreck, if the same is claimed, but 
 if the same is unclaimed then to the person entitled to such unclaimed 
 wreck, dov;ble the value of such wreck (such value to be recovered in the 
 same way as a penalty of like amount) ; and 
 He shall incm' a penalty not exceeding 100/. 
 451. If any receiver suspects or receives information that any wreck is secreted Power for 
 or in the possession of some person who is not the owner thereof, or otherwise receivers to 
 improperly dealt with, he may apply to any justice of the peace for a warrant, and wreck. 
 Buch justice .shall have power to grant a warrant, by virtue whereof it shall be 
 lawful for the receiver to enter into any house or other place wherever situate, 
 and also into any ship or boat, and to search for, and to seize and detain any 
 such wreck as aforesaid there found ; and if any such seizure is made in conse- 
 quence of inlormation that may have been given by any person to the receiver, 
 
 (a) As to tlie power of a wreck commissioner in Blackwall Reach, and moored her atNorthum- 
 
 under tliis section, sec 39 & 40 Vict. c. 80, s. 31, berland Wharf :—HeJd, that she was not wreck 
 
 pofit. As to a deposition taken under this section within the terms of this section. The Zeta, 44 
 
 not being evidence in an action of damage, sec L. J. Ad. 22. See 40 & 41 Vict. c. 16, an Act to 
 
 the Jlenr II Coxon, 41 h. J. AA. S3. facilitate the removal of wrecks obstructing 
 
 (&) Salvors found a barge with noone onboard, navigation.
 
 734 
 
 >r. s. ACT, 1854, I'AJtT 8, 
 
 Notico of 
 wreck to bo 
 given by 
 recoivor. 
 
 Goods deemeil 
 perishable 
 or of small 
 value may 
 be sold iinme- 
 diately. 
 
 In cases 
 where any 
 lord of the 
 manor or 
 other person 
 is entitled 
 to unclaimed 
 ■wreck, receiver 
 to give notice 
 to him. 
 
 Payments to 
 be ruade to 
 receiver fa). 
 
 Disputes 
 as to sums 
 payable to 
 receiver to 
 be determined 
 by Board of 
 Trade. 
 Application 
 of fees. 
 
 the informer »liall be entitled by way of salvage to such sum not exceeding in any 
 case 5/. as the receiver may allow. 
 
 452. Every receiver shall ■within 48 hours after taking possession of any 
 wreck cause to be posted up in the custom-house of the port nearest to the 
 place where such ^^Teck was found or seized a description of tlie same and of any 
 marks by wliieh it is distinguished, and sJiall also, if the value of such WTeck 
 exceeds 20/., but not otherwise, transmit a similar description to the secretary 
 of the committee of Lloyd's aforesaid ; and such secretary shall jDost up the 
 description so sent, or a copy tliereof, in some conspicuous place, for the inspec- 
 tion of all persons desirous of examining the same. 
 
 453. In cases where any wreck in the custody of any receiver is under the 
 value of 5/., or is of so perishable a nature or so much damaged that the same 
 cannot, in his opinion, be advantageously kept, or if the value thereof is not suffi- 
 cient to defray the chai'ge of warehousing, the receiver may sell the same before 
 the expiration of the period hereinafter mentioned, and the money raised by such 
 sale, after defraying the ex]3enses thereof, shall be held by the receiver for the 
 same purposes and subject to the same claims for and to which the article sold 
 would have been held and liable if it had remained vtnsold. 
 
 454. In cases where any admiral, vice-admiral, lord of the manor, or other 
 person is entitled for his own use to unclaimed ■w'reck found on any place situate 
 witliin a district for which a receiver is appointed, such admiral, ■\'ice-admiral, 
 lord of tlie manor, or other pereon shall deliver to such receiver a statement con- 
 taining the particulars of his title, and the address to which notices are to be 
 sent ; and upon such statement bemg so delivered, and proof made to the satisfac- 
 tion of the receiver of the validity of such title, it shall l)e his duty, whenever he 
 takes possession of any wreck found at any such place, to send ■within 48 hours 
 thereafter a description of tlie same and of any mai'ks by which it is distinguished, 
 directed to such address as aforesaid. 
 
 455. There sliall be paid to all receivers appointed under this Act the expenses 
 properly incurred by tliem in the performance of their duties, and also in respect 
 of the several matters specified in the table marked V. in the schedule hereto, such 
 fees, not exceding the amounts tliereln mentioned, as may from time to time be 
 dh'ected by the Board of Trade ; aud the receiver shall have the same lien and be 
 entitled to the same remedies for the recovery of such expenses and lees as a salvor 
 has or is entitled to in respect of salvage due to him ; but, save as aforesaid, no 
 receiver appointed under tliis Act shall, as such, be entitled to any remuneration 
 whatsoever. 
 
 456. Whenever any dispute arises in any part of the U. K. as to the amount 
 payable to any receiver in respect of expenses or fees, such dispute shall be deter- 
 mined by the Board of Trade, whose decision shall be final. 
 
 457. All fees received by any receiver appointed under this Act, in respect of 
 an J' services performed by him as receiver, shall be carried to and form part of the 
 mercantile marine fund, and a separate account thereof shall be kept, and the 
 monies arising therefrom shall be applied in defraying any expenses duly incurred 
 in carrying into eifect tlie purposes of the 8th part of this Act, in such manner as 
 the Board of Trade directs. 
 
 Salvage in 
 the United 
 Kingdom. 
 
 Salvage in 
 respect of 
 services ren- 
 dered in the 
 
 Salvage in the United Kingdom (b). 
 
 458. In the following cases ; (that is to say,) 
 
 Whenever any ship or boat is stranded or otherwise in distress on the shore of 
 any sea or tidal water situate -witliin the limits of the U. K., and services are 
 rendered by any person, 
 
 (1.) In assisting such ship or boat ; 
 
 (2.) In sa-ving the lives of the persons belonging to such ship or boat ; 
 
 (a) See 17 & 18 Vict. c. 120, s?. 12. 13 post. 
 
 (b) As to claims for salvage of life, see 24 Vict. 
 C, 10, s. 9; 25 & 26 Vict, c. 63, s. 59, post. See 
 
 instractions Issued to receivers by Board of Trade 
 post.
 
 17 & 18 VTCT. (', 104. 735 
 
 (3,) In saving the cargo or apparel uf such .ship or boat, or any portion 
 thereof ; 
 And -whenever any vrreck (c) is saved by any person other than a receiver 
 within the U. K. ; 
 There shall be payable by the owners of such ship or boat, cargo, apparel, or 
 wreck, to the person by whom such services or any of them are rendered, or by 
 whom such wi'eck is saved, a reasonable amount of salvage, together with all 
 expenses properly incurred by him in the performance of such services or the 
 saving of such wreck, the amount of such salvage and expenses (which expenses 
 are hereinafter included luider the term salvage) to be determined, in case of 
 dispute, in manner hereinafter mentioned. 
 
 459. Salvage in respect of the preservation of the life or lives of any person or Salvage for 
 persons belonging ((/) to any such ship or boat as aforesaid shall be payable by '5e'^„™fAy 
 the owners of the ship or boat in priority to all other claims for salvage ; and in Board of'Traile 
 cases where such ship or boat is destroyed, or where the value thereof is insufh- nut of mercan- 
 cient, after payment of the actual expenses inciu'red, to pay the amount of salvage flJn "/^""^^ 
 due in respect of any life or lives, the Board of Trade may in its tliscretion award 
 
 to the salvors of such life or lives out of the mercantile marine fund such sum or 
 sums as it deems fit, in whole or part satisfaction of any amount of salvage so left 
 unpaid in respect of such life or lives, 
 
 460. Disputes with respect to salvage arising within the boundaries of the Disputes as to 
 Cinc|ue Ports shall be determined in the manner in which the same have hitherto mottled! °^ 
 been determined ; but whenever any dispute arises elsewhere in the U. K. (e) 
 betAveen the owners of any such ship, boat, cargo, apparel, or wreck as aforesaid, 
 
 and the salvors, as to the amount of salvage, and the parties to the dispute cannot 
 agree to the settlement thereof by arbitration or other^vise. 
 Then, if the simr claimed (/) does not exceed 200/., 
 
 Such dispute shall (g) be referred to the arl^itration of any two justices of 
 
 the peace resident as follows ; (that is to say,) 
 In case of wreck (/t), resident at or near the place where such wreck is 
 
 found : 
 In case of services rendered to any ship or boat, or to the persons, cargo, or 
 apparel belonging thereto, resident at or near the place where such 
 ship or boat is lying, or at or near the first port or place in the U. K. 
 into which such ship or boat is brought after the occurrence of the 
 accident by reason whereof the claim to salvage arises : 
 But if the sum claimed exceeds 2001. 
 
 Such dispute may, with the consent of the parties, be referred to the 
 arbitration of such justices as aforesaid, but if they do not consent shall 
 in England be decided by the High Coiu-t of Admiralty of England, 
 in Ireland by the High Court of Admiralty of Ireland, and in Scot- 
 land by the Court of Session ; subject to tliis proviso, that if the 
 claimants in such dispute do not recover in such Court of Admiralty 
 or Court of Session a greater smn than 200/., they shall not, unless the 
 court certifies that the case is a fit one to be tried in a superior court, 
 recover any cost, charges, or expenses incurred by them in the prose- 
 cution of their claim : 
 And every dispute with respect to salvage may be heard and adjudicated upon, on 
 the application either of the salvor or of the owner of the property salved, or of 
 their respective agents. 
 
 461. Whenever in pursuance of this Act any dispute as to salvage is referred Manner in 
 
 to the arbitration of two justices, they may either themselves determine the same, which justices 
 
 (c) See Palmer v. Bouse, infra. to salvage in a suit against the steam vessel. The 
 
 id) This includes passengers on board, the Cairo, L. R. 4 Ad. 186. 
 
 Fusilier, 34 L. J. Ad. 25. As to the owners of (c) See the Actif, 3 .Tur. (n.s ) 893, 
 
 cargo being liable, see id. Where a steam vessel (/) Seethe WiUiam and Johv, iMar. LawCa. 
 
 sustained serious damage by a collision, and her 311 ; B. & L. 49 ; 92 L. J. Ad. 102. 
 
 master ordered the boats out, and some of the (g) AWnson v. Bell, 31 L. J. M. C. 174; the 
 
 crew, without his permission, but not against his Eleanore, 33 L. J. Ad. 19 ; the Kate, 33 L. J. Ad, 
 
 orders, got into one of the boats and rowed away 122. 
 
 and were picked up at sea and rescued from (h) Palmer v. Boi(se, 27 L. J. Ex. 437, where 
 
 danger by a smack, the smack was held entitled timber which had accidentally drifted was held 
 
 not to be wreck.
 
 736 
 
 :\r. s. ACT, IS-')^, PAKT 8, 
 
 may decide 
 disputes (n). 
 
 Costs of arbi- 
 tration. 
 
 Justices 
 may call for 
 documents 
 and administer 
 oaths. 
 
 Appeal to 
 Courts of 
 Admiraltv. 
 
 Justices to 
 ti ansmit copy 
 of proceedings 
 and certificate 
 of value to 
 Court of 
 Appeal. 
 
 Payment 
 of salvage, 
 10 whom to 
 be made in 
 ease of dispute 
 as to appor- 
 tionment. 
 
 Apportionment 
 of !>alvage (c;. 
 
 with power to call to their assistance any person convor.sant with maritime affairs 
 as assessor, or they may, if a difference of opinion arises between them, or with- 
 out such difference, if they think fit, appoint some person conversant with mari- 
 time affairs as umpire to decide the point in dispute ; and such justices or their 
 umpire shall make an award, as to the amount of salvage payable, within the fol- 
 lowing times ; that is to say, the said justices within 48 houis after such dispute 
 has been referred to them, and the said umpire within 48 hours after his appoint- 
 ment, with power nevertheless for such justices or umpire by writing under their 
 or his hands or hand to extend the time within Avhich they and he are hereby 
 respectively directed to make their or his award. 
 
 462. There shall be paid to every assessor and umpire who may be so appointed 
 as aforesaid in respect of his ser\'ices such sum not exceeding 5^. as the 
 Board of Trade may from time to time direct ; and all the cost of such arbitra- 
 tion, including any such payment as aforesaid, shall be paid by the parties to the 
 dispute, in such manner and in such shares and proportions as the said justices or 
 as the said umpii'e may direct by their or his award. 
 
 463. The said justices or their umpire may call for the production of any docu- 
 ments in the possession or power of either ])arty, which they or he may think 
 necessary for determining the question in dispute, and may examine the parties or 
 their witnesses on oath, and administer the oaths necessary for that purpose. 
 
 464. If any person is aggrieved by the award made by sitch justices or such 
 imipire as aforesaid,' he may in England appeal to the High Court of Admiralty of 
 England, in Ireland to the High Court of Admiralty of Ireland, and in Scotland 
 to the Court of Session ; but no sucli appeal shall be allowed unless the simi in 
 dispute (6) exceeds 50^., nor unless within 10 days after the date of the award the 
 appellant gives notice to the justices to whom the matter was referred of his 
 intention to appeal, nor unless the appellant pi'oceeds to take out a monition, or to 
 take such other proceeding as according to the practice of the Court of Appeal 
 is necessary for the institution of an appeal, wdthin 20 days from the date of the 
 award. 
 
 465. Whenever any appeal is made in mamier hereinbefore provided, the 
 justices shall transmit to the proper officer of the Coiu't of Appeal a copy on 
 unstamped paper certified under their hands to be a true copy of the proceedings 
 had before such justices or their umpire, if any, and of the award so made by 
 them or him, accompanied with their or his certificate in writing of the gross value 
 of the article respecting which salvage is claimed ; and such copy and certi- 
 ficate shall be admitted in the Coiu't of Appeal as evidence in the cause. 
 
 466. AMienever the aggregate amount of salvage payable in respect of 
 salvage services rendered in the U. K. has been finally ascertained either by 
 agreement or by the award of such justices or their umpire, but a dispute arises 
 as to the apportionment thereof amongst several claimants, then, if the amount 
 does not exceed 200^., it shall be lawful for the party liable to pay the amount so 
 due to apply to the receiver of the district for liberty to pay the amount so ascer- 
 tained to him ; and he shall, if he thinks fit, receive the same accordingly, and 
 grant a certificate under his hand, stating the fact of such papnent and the ser- 
 vices in respect of which it is made ; and such certificate shall be a full discharge 
 and indemnity to the person or persons to whom it is given, and to their ship, 
 boats, cargo, apparel, and effects, against the claims of all persons whomsoever in 
 respect oi the services therein mentioned ; but if the amount exceeds 200/., it 
 shall be apportioned in manner hereinafter mentioned. 
 
 467. Upon the receipt of any such amount as aforesaid the receiver shall with 
 all convenient speed proceed to distribute the same among the several persons 
 entitled thereto, upon such emleuce and in such shares and proportions as he 
 thinks fit, with power to retain any monies that may appear to him to be payable 
 to any absent parties ; but any distribution made in pursuance of this section 
 shall be final and conclusive against the rights of all persons claiming to be entitled 
 to any portion of the monies so distributed. 
 
 1 
 
 (a) See 23 & 26 Yict. c. 63. g. 49, post. 
 
 (b) The Mam Ann, 1 Bro. and Lush, 234, 2 
 Mar. Law Ca. 191 ; the Generoug, 37 L. J. Ad. 37 ; 
 the An^ireiv Wilson, 32 L. J. Ad. 104, 
 
 (c) See instructions to receivers as to appor- 
 tionment of salvage. &c., i«5ued by Board of 
 Trade, post.
 
 17 & 18 VICT. 0. 104 737 
 
 468. Whenever any salvage is due to any person under this Act, the receiver Manner of 
 shall act as follows ; (that is to say,) paym"nTof 
 
 (1.) If the same is due in respect of services rendered in assisting any ship or salvago. 
 boat, or in saving the lives of persons Iselonging to the same, or the cargo 
 or apparel thereof. 
 
 He shall detain such ship or boat, and the cargo and apparel belong- 
 ing thereto, nntil payment is made, or process has been issued 
 by some competent court for the detention of such ship, boat, cargo, 
 or apparel ; 
 (2.) If the same is due in respect of the saving of any wreck, and such wreck 
 is not sold as unclaimed in pursuance of the provisions hereinafter 
 contained, 
 
 He shall detain such wreck until payment is made, or process has been 
 issued in manner aforesaid ; 
 But it shall be lawful for the receiver, if at any time previously to the issue of 
 such process security is given to his satisfaction for the amount of salvage due, to 
 release from his custody any ship, boat, cargo, apparel, or wreck so detained by 
 him as aforesaid ; and in cases where the claim for salvage exceeds ^200 it shall 
 . be lawful in England for the High Court of Admiralt)' of England, in Ireland for 
 the High Court of Admiralty of Ireland, and in Scotland for the Court of 
 Session (d), to determine any question that may arise concerning the amount of 
 the security to be given or the sufficiency of the sureties ; and in all cases where 
 bond or other security is given to the receiver for an amount exceeding ^£200 it 
 shall be lawful for the salvor, or for the owner of the property salved, or their 
 respective agents, to institute proceedings in such last-mentioned courts, for the 
 purpose of having the questions arising between them adjudicated ujion, and the 
 Baid courts may enforce payment of the said bond or other security, in the same 
 manner as if bail had been given in the said courts. 
 
 469. Whenever any ship, boat, cargo, apparel, or wreck is detained by any Power of 
 receiver for non-payment of any sums so due as aforesaid, and the parties liable geiTm-operty 
 to pay the same are aware of such detention, then in the following cases ; (that is salved ia 
 
 to sav ) cases of non- 
 
 (1.) In cases where the amoimt is not disputed, and payment thereof is not 
 
 made within 20 days after the same has become due ; 
 (2.) In cases where the amount is disputed, but no appeal lies from the first 
 tribunal to which the dispute is referred, and payment thereof is not 
 made within 20 days after the decision of such first tribunal ; 
 (3.) In cases where the amount is disputed, and an appeal lies from the decision 
 of the first tribunal to some other tribunal, and payment thereof is not 
 made within such 20 days as last aforesaid, or such monition as herein- 
 before mentioned is not taken out within sucli 20 days, or such other 
 proceedings as are according to the practice of such other tribunal 
 necessary for the prosecution ot an appeal are not instituted within such 
 20 days ; 
 The receiver may forthwith sell such ship, boat, cargo, apparel, or wreck, or a 
 sufficient part thereof, and out of the proceeds of the sale, after payment of all 
 expenses thereof, defray all sums of money due in resjsect of expenses, fees, and 
 salvage, paying the surplus, if any, to the owners of the property sold, or other 
 the parties entitled to receive the same. 
 
 470. Subject to the payment of such expenses, fees, and salvage as aforesaid. Subject to 
 the owner of any -wreck who establishes his claim thereto to the satisfaction of P^^™^"* 'l^ 
 the receiver, within one year from the date at which such wreck has come and saiviige, ' 
 into the possession of the receiver, shall be entitled to have the same delivered up owier entitled 
 to Mm. ^''^''''^' 
 
 ((?) See 25 & 26 Vict. c. 63, s. 51, post. 
 
 3 P
 
 738 
 
 M. S. ACT, ISSttj PART 8, 
 
 rncJaimed 
 
 Wreck in 
 
 the United 
 
 Sinfltlom, 
 
 Receiver to 
 deliver up 
 possession 
 of iinclaimcil 
 ■wreck to lord 
 of manor, or 
 other person 
 entitled. 
 
 Unclaimed JFreclc in the United Kingdom. 
 
 471. Ill tlio event of no owner establishing a claim to wreck found in any place 
 in the U. K. before the expii-ation of a year from the date at Avhich the same has 
 come into the possession of the receiver, then, if any such admiral, \dce-admiral, 
 lord of any manor, or other pei'son as aforesaid has given notice to and has proved 
 to the satisfaction of the receiver that he is entitled to wreck found at such place, 
 the receiver shall, upon payment of all expenses, fees, and salvage due in respect 
 of such wreck, deliver up possession thereof to such admiral, vice-admiral, lord of 
 the manor, or other person ; and in case of dispute as to the amount of the sums 
 so payable, and also in case of default being made in payment thereof, such dis- 
 pute shall be determined and payment enforced in the manner in which such 
 amount and payment is hereby directed to be determined and enforced in cases 
 where any 0A\Tier establishes his claim to wreck. 
 
 472. If an}- dispute arises between the receiver and any such admiral, ^'ice- 
 admiral, lord of any manor, or other person as aforesaid as to the validity of his 
 title to wreck, or if divers persons claim to be entitled to wreck found at the same 
 place, the matter in dispute may be decided by two justices in the same manner in 
 which disputes as to salvage coming within the jurisdiction of justices are herein- 
 before directed to be determined. 
 
 473. If any party to such dispute is rinwilling to refer the same to two justices, 
 or haAdng so referred the same, is dissatisfied with their decision, he may within 
 three months from the expiration of such year as aforesaid, or from the date of 
 such decision as aforesaid, as the case may be, take such proceedings as he may be 
 ad^rised in any court of law, equity, or admii^^lty, having jurisdiction in the matter, 
 for establishing his title.. 
 
 474. The Boai'd of Trade shall have power, ^^'itll the consent of the Treasury, 
 on Miaff'o™the '^^^* ^^ ^■'^^ revenue arising under the 8th part of this Act, for and on behalf of 
 
 H. M., her heirs and successors, to purchase all such rights to wreck as may be 
 possessed by any person or body corporate, other than H. M. ; and for the purpose 
 of facilitating such purchases the pi'ovisions of the " Lands Clauses Consolidation 
 Act, 1845,/ and the " Lands Clauses Consolidation (Scotland) Act, 1845," relating 
 to the purchase of lands by agreement, shall be incorporated with this Act ; and 
 ill the construction of tliis Act and the said incorporated Acts, this Act shall be 
 considered to be the " Special Act ;" and any such rights to An-eck as aforesaid 
 shall be considered as an interest in land authorized to be taken by the Special 
 Act, and H. M., her heirs and successors, shall be considered as the promoters of 
 the undertaking. 
 
 475. If no owner establishes his claim to "nTeck found at any place before the 
 expiration of such period of a year as aforesaid, and if no admiral, vice-admii-al, 
 lord of any manor, or j^erson other than H. M., her heirs and successors, is proved 
 to be entitled to such Avreck, the receiver shall forthwith sell the same, and after 
 payment of all expenses attending such sale, and deducting therefrom his fees and 
 all expenses (if any) incurred by him, and paying to the salvors such amount of 
 salvage as the Board of Trade may in each case or by any general rule determine, 
 pay the same into the receipt of H. M.'s Exchequer, in such mamier as the Treasury 
 may dii-ect, and the same shall be carried to and form pai't of the Consolidated 
 Fund of the U. K. 
 
 Disputed title 
 to wreck 
 how to be 
 decided (a). 
 
 Appeal from 
 ilecision of 
 justices. 
 
 Power of the 
 
 Crown to pui'- 
 chase rights to 
 wreck. 
 
 ITnclaimed 
 wreck to be 
 sold (h) 
 
 Jurisdidimi of 
 the High Court 
 of Admiralty. 
 
 High Court of 
 Admiralty may 
 decide on all 
 salvage cases, 
 whether on sea 
 or land. 
 
 Jurisdiction of the High Court of Admiralty. 
 
 476. Subject to tlie proAisions of this Act, the High Court of Admiralty shall 
 have jiuisdiction to decide upon all claims whatsoever relating to salvage, whether 
 the services in respect of wliich salvage is claimed were performed ujion the liigh 
 
 (a) See 26 & 28 Vict, c. 63, s. 5 , 'fost. 
 
 (&) Sec 25 & 26 Vict. c. 63, s. hZ,j)ost,
 
 17 & 18 VICT. c. 104. 739 
 
 seas, or mtliin the body of any county, or partly in one place and partly in the 
 other, and whether the wi-eck is found at sea or cast upon the land, or partly in 
 the sea and partly on land. 
 
 Offences in respect of TVreck Offences in 
 
 '^ J- •' reapect of 
 
 Wrcclc. 
 
 477, Whenever any ship or boat is stranded or otherwise in distress on or near — 
 
 the shore of any sea or tidal water in the U. K., and such ship or boat, or any part necked bein^'^' 
 of the cargo or apparel thereof, is jilundered, damaged, or destroyed by any persons plundered byli 
 riotously and tumultuously assembled together, whether on shore or afloat, full as^mbioM^the 
 compensation shall be made to the owner of such shij), boat, cargo, or ajiparel as hundred to be 
 follows ; (that is to say,) ^^^^^^ foi-' 
 
 In England, by the inhabitants of the hundred, Avapentake, ward, or district in '' '''^'''■S^®* 
 the nature of a hundred, by whatever name denominated, in or nearest to 
 which the said offence is committed, in manner provided by an Act of the 
 8 Geo. 4, c. 31, in case of the destruction of churches and other buildings by 
 a riotous assemblage, or as near thereto as circumstances permit : 
 In Ireland, by the inhabitants of the county, county of a city or town, barony, 
 town or towns, parish or parishes, in or nearest to Avhicli such oftence is com- 
 mitted, in manner provided by an Act of the 4 Will. 4, c. 37, for the recovery 
 of satisfaction and amends for the malicious demolition of or injury to 
 churches, chajiels, and other buildings used for religious worship according 
 to the usage of the United Church of England and Ireland, or as near thereto 
 as circumstances permit : 
 In Scotland, by the inhabitants of the county, city, or borough in or nearest to 
 which such oftence is committed, in manner provided by an Act of the 1 Geo. 
 1, Stat. 2, c. 5, Avith respect to ijrosecutions for repairing the damages of any 
 churches and other buildings, or as near thereto as circumstances permit. 
 
 478. Every person Avho does any of the following acts ; (that is to say,) Penalty for 
 (1.) Wrongfully carries away or removes any part of any ship or boat stranded plundering in 
 
 or in danger of being stranded or otherwise in distress on or near the wreck" for''^'' 
 shore of any sea or tidal water, or any part of the cargo or apparel thereof, obstructing the 
 
 or any m-eck ; or ' weS^'^' 
 
 /^ \ -ri 1 • • -I I'lii • o 11-1 wieckcd pro- 
 
 (2.) Endeavours m any way to mipede or huider the saving ot auch ship, boat, perty, andto- 
 cargo, apparel, or wreck ; or secreting the 
 
 (3.) Secretes any Avreck, or obliterates or defaces any marks thereon : 
 Shall, in addition to any other penalty or punishment he may be subject to under 
 this or any other Act or law, for each such offence incur a penalty not exceeding 
 £bO ; and every person, not being a receiver or a person herein-before 
 authorized to take the command in cases of ships being stranded or in distress, or 
 not acting under the orders of such receiver or person, who, without the leave 
 of the master, endeavours to board any such ship or boat as aforesaid, shall for 
 each offence incur a penalty not exceeding £50 ; and it shall be lawful for the 
 master of such ship or boat to repel by force any sucb person so attempting to 
 board the same. 
 
 479. If any person takes into any foreign port or place any ship or boat stranded. Penalty for 
 derelict, or otherwise in distress on or near the shore of the sea or of any tidal fore^^u Mi-ts '" 
 water situate within the limits of the U. K., or any part of the cargo or apparel 
 
 thereof, or anything belonging tliereto, or any wreck found Avithin such limits 
 as aforesaid, and there sells the same, he shall be guilty of felony, and be suljject 
 to penal serAdtude for a term not exceeding 4 years [now 5 years]. 
 
 Dealers in Marine Stores and Manufacturers of Anchors, (d.) „ , 
 
 Murine Storex 
 
 480. Every person dealing in, buying, and selling anchors, cables, sails, or old «'"' Manvfac- 
 junk, old iron, or marine stores of any description, shall conform to the following Anchors. 
 regulations ; (that is to say,) — 
 
 Regulations to 
 be observed by 
 
 (c) As to stealing from ships in distress, &c., anchors see 37 and 38 A'ict. c. 51, and the other ?,,?„?'?„,. 
 
 see 2 Russ. on Crimes, ijy Prentice, p. 307. acts therein referred to. maimc stoies. 
 (rf) As to the miauufacture and testing of 
 
 3 B 2
 
 740 
 
 M. S. ACT, 1854, PAET 8, 
 
 Manner ot 
 obtaiuing permit 
 to cut up cables. 
 
 Pennit to be 
 aitvertised 
 before dealer 
 proceeds to act 
 thereon. 
 
 Manufacturers 
 to place marks 
 on anchors, 
 
 (1.) He fjliall bavo hi? name, togetlier -with tlie words " Dealer in Marine Stores," 
 painted distinctly in letters of not less than six inches in length on. every 
 •warehouse or other place of deposit l^elonging to him : 
 
 If he does not he shall inciu- a penalty not exceeding £20. 
 (2.) He shall keep a Look or hooks, fairly writtoi, and shall enter therein an 
 accoimt of all such inaime stores as he may from time to time become 
 possessed of, stating, in respect of each article, the time at wliich and the 
 peKon from wliom he purchased or received the same, adding, in the case 
 of every such last-mentioned person, a description of his business and 
 place of abode ; 
 
 If he does not he shall incur [for the first offence a penalty not 
 exceeding £20, and for every subsequent offence a penalty not 
 exceeding £50 ; 
 (3.) He shall not, by himself or his agents, piu'chase marine stores of any 
 description from any person apparently under the age of 16 years ; 
 
 If he does so he shall incur for the first offence a penalty not 
 
 exceeding £5, and for every snbsec[uent offence a penalty not 
 
 exceeding £20 : 
 
 (4.) He shall not cut up any cable, or any similar article exceeding five fathoms 
 
 in length, or nnlay the same into tsvine or paper stuff", on any pretence 
 
 "whatever, vrithout obtaining such permit and publishing such notice of 
 
 his having so obtained the same as is herein-after mentioned ; 
 
 If he does so he .shall incur for the first offence a penalty not 
 exceeding £20, and for every snbsec[Xient oftence a penalty not 
 exceeding £50. 
 
 481. In order to obtain such permit as aforesaid a dealer in marine stores shall 
 make a declaration before some justice of the peace having jurisdiction over the 
 place -where such dealer resides containing tlie following particulars ; (that is to 
 say,) 
 
 (1.) A statement of the quality and description, of the cable or other like article 
 
 about to be cut up or imlaid : 
 (2.) A statement that he purchased or otherwise acquired the same bond fide and 
 without fraud, and ^^•ithout any knowledge or suspicion that the same had 
 been come by dishonestly : 
 (3.) A statement of the name and description of the person from whom he pur- 
 chased or received the same : 
 And it shall be lawful for the justice before whom any such declaration is made, 
 or for the receiver of the district in which such dealer in marine stores resides, upon 
 the production of any such declaration as aforesaid, to grant a permit authorizing 
 hiui to cut up or unlay such cable or other like article. 
 
 482. No dealer in marine stores who has obtained such permit as aforesaid 
 .shall proceed by virtue thereof to cut up or unlaj' any cable or other like article 
 until he has for the space of one week at the least before doing any .such act 
 published, in some newspaper published nearest to the place where he resides, one 
 or more advertisements notifying^^ the fact of his liaving so obtained a permit, and 
 specifying the natiue of the cable or other article mentioned in the permit, and 
 the place where the same is deposited, and the time at which the same is intended 
 to be so cut up or tmlaid ; and if any person suspects or believes that such cable 
 or other article is liis propei-ty, he may apply to any justice of the peace for a 
 waiTant ; and such justice of the peace niav, on the applicant making an oath, or, 
 if a person entitled to make an aflirmation, making an affirmation in support of such 
 his su.spicion or belief, grant a warrant by vii-tue whereof the applicant .shall be 
 entitled to require the production by such dealer as aforesaid of the cable or other 
 article mentioned in the permit, and also of the book of entries hereinbefore 
 directed to be kept by every dealer in marine stores ; and, upon such cable or 
 other article and book of entries being produced, to inspect and examine the 
 game ; and if any dealer in marine stores makes default in complying Avith 
 any of the provisions of tliis section, he shall for the first offence incur a 
 j)enalty not exceeding £20, and for every subsecjuent offence a penalty not 
 exceeding £50. 
 
 483. Every manufacturer of anchors shall, in case of each anchor which he 
 manufactures; mark in legible characters on the crown and also on the shank imdcr
 
 17 & 18 VICT. c. 104. 741 
 
 the stock, liis name or initials, witli tlie addition of a progressive number and the 
 weight of such anchor ; and if he makes default in doing so he shall, for each 
 offence, incur a penalty not exceeding £5. 
 
 Salvage hy Her Majesfjj's Shi2)s. Salmge by 
 
 . No claim foi' 
 
 484. In cases where salvage services are rendered by any ship belonging to salvage service 
 H. M., or by the commander or crew thereof, no claim shall be made or allowed Jigspect'orioss^'^ 
 lor any loss, damage, or risk thereby caused to sucli ship, or to the stores, tackle, oi- risk of H. 
 
 or furniture thereof, or for the use of any stores or other articles belonging to M-'s ships or 
 H. M., supplied in order to effect such services, or for any other expense or loss l'^°i'°^ ^^ 
 sustained hj H. M by reason of such services. 
 
 485. No claim whatever on account of any salvage services rendered to any ship claims for 
 or cargo, or to any appurtenances of any ship, by the commander or crew or part ^^l^'^sc by H. 
 of the crew of any of H. M.'s ships shall be finally adjudicated upon, unless the j^^^^^ b«f deter- 
 consent of the Admiralty has first been obtained, such consent to be signified by mined witiiout 
 writing under the-hand of the Secretary to the Admiralty ; and if any person who ^'J.^'j^y °* '^'^' 
 has originated proceedings in respect of any such claim, fails to prove such consent 
 
 to the satisfaction of the court, his suit shall stand dismissed, and he shall pay all 
 the costs of such proceedings ; provided that any document purporting to give such 
 consent and to be signed l)y the Secretary to the Admiralty shall be prima facie 
 evidence of such consent having been given. 
 
 486. Whenever services, for which salvage is claimed, are rendered to any ship steps to be taken 
 or cargo, or to any part of any ship or cargo, or to any appurtenances nf any ship, ■^hen salvage 
 at any place out of the U. K., and the four seas adjoining thereto, by the com- been rendered 
 mander or crew or part of the crew of any of H. ]\I.'s ships, the property alleged by H. M.'s 
 
 to be salved shall, if the salvor is justified by the circumstances of the case in ships abroad. 
 
 detaining it at all, be taken to some port where there is either a consular ofiicer or 
 
 a Vice- Admiralty court ; and within 24 hours after arri\'ing at such jiort, 
 
 the said salvor, and the master or other person in charge of the property alleged 
 
 to be salved, shall each deliver to the consular officer or Vice-Admixalty Judge 
 
 there a statement verified on oath, specifying, so far as they respectively can, and 
 
 so far as the particulars requii'ed apply to the case, 
 
 (1.) The place, condition, and circumstances in which the said ship, cargo, or 
 property was at the time when the services were rendered for which salvage 
 is claimed : 
 (2.) The nature and duration of the services rendered : 
 The salvor shall add to his statement, 
 
 (3.) The proportion of the value of the said ship, cargo, and property, and of 
 the freight which he claims for salvage, or the value at which he estimates 
 the said ship, freight, cargo, and property respectivelj', and the several 
 amoiints that he claims for salvage in respect of the same : 
 (4.) Any other circumstances he thinks relevant to the said claim : 
 And the said master or other person in charge of the said ship, cargo, or property 
 shall add to his statement, 
 
 (3.) A copy of the certificate of registry of the said ship, and of the indorsements 
 thereon, stating any change which (to Ms knowledge or belief) has 
 occurred in the particulars contained in such certificate ; and stating 
 also, to the best of his knowledge and belief, the state of the title to the 
 ship for the time being, and of the incumbrances and certificates of 
 mortgage or sale (if any) afiecting the same, and the names and places of 
 biisiness of the owners and incumbrancers ; 
 (4. ) The name and place of business or residence of the freighter (if any) of the 
 
 said ship, and the freight to be paid for the voyage she is then on : 
 (5.) A general account of the quantity and nature of the cargo at the time the 
 
 salvage services were rendered : 
 (6.) The name and place of business or residence of the o^vner of such cargo, and 
 
 of the consignee thereof : 
 (7.) The values at which the said master estimates the said ship, cargo, and
 
 742 
 
 M. S. ACT, 1854, PART 8, 
 
 Consular oflBcer 
 or judge to fix 
 amount for 
 which a bond is 
 to be given. 
 
 On master 
 executing bond, 
 the right of 
 detention to 
 cease. 
 
 Provision for 
 additional se- 
 curity in the 
 case of ships 
 owned by per- 
 sons resident 
 out of H. M.'s 
 dominions. 
 
 Documents to be 
 sent to England. 
 
 Whom the bond 
 shall bind. 
 
 Court in which 
 it is to be 
 adjudicated on. 
 
 property, and tlie freight respectivelj', or, if lie thinks fit, in lieu of suck 
 estimated value of the cargo, a copy of the ship's manifest : 
 (8.) The amounts which the master thinks should be paid as salvage for the 
 
 ser^aces rendered : 
 (9.) An accurate list of proj^erty saved, in cases where the sliip is not saved : 
 (!().) An account of the proceeds of the sale of the said ship, cargo, or property, 
 in cases Avhere the same or any of them are sold at such port as afore- 
 said : 
 (11.) The numbers, capacities, and condition of the crew of the said ship at the 
 
 time the said services w^ere rendered : 
 (12.) Any other circumstances he thinks relevant to the matters in question : 
 (13.) A statement of his willingness to execute a bond in the form in the table 
 marked W. iii the schedule hereto, in such amount as the said consular 
 officer or Vice- Admiralty Judge may fix. 
 
 487. The said consular officer or judge, as the case may be, shall, within four 
 days after receiving the aforesaid statements, fix the amount to be inserted in the 
 said bond at such sum as he thinks sufficient to answer the demand for the salvage 
 ser-\dces rendered ; but such sum shall not exceed one-half of the value wliich in 
 his estimation the said ship, freight, and cargo, or any parts thereof in respect of 
 which salvage is claimed, are worth ; and the said consular officer or judge may, 
 if either of the aforesaid statements is not delivered to him within the time hereby 
 required, proceed ex parte, but he shall in no case under this Act recpiire the cargo 
 to be unladen ; and the said consular officer may, in any proceeding imder this 
 Act relating to salvage, take affidavits and receive affirmations. 
 
 488. The said consular officer or judge shall send notice of the sum wdiich he 
 has so fixed as aforesaid to the said salvor and the said master ; and upon such 
 master executing a bond in such form as aforesaid, with the said sum inserted 
 therein, in the presence of the said officer or judge (who shall attest the same,) 
 and delivering the same to the said salvor, the right of the said salvor to detain or 
 retain possession of the said shiji, cargo, or property, or any of them, in respect of 
 the said salvage claim, shall cease. 
 
 489. If the ship, cargo, or property, in respect of which the claim for salvage is 
 made, is not owned by persons domiciled in H. M.'s dominions, the right of the 
 salvor to detain or retain jjossession thereof shall not cease unless the master 
 procures, in addition to the said bond, such security for the due performance of 
 the conditions thereof, as the said officer or judge considers sufficient for the 
 purpose, and j^laces the same in the possession or custody of the said officer or 
 judge, or, if the salvor so desires, in the possession or custody of the said officer or 
 judge jointly vnih any other person whom the said salvor appoints for the purpose. 
 
 490. The said consular officer or judge shall, at the earliest opportunity, transmit 
 the said statements and documents so sent to him as aforesaid, and a notice of the 
 sum he has so fixed as aforesaid, to the High Court of Admiralty of England, or 
 if the said salvor and the said master or other person in charge as aforesaid agree 
 that the said bond shall be adjudicated upon by any Vice- Admiralty court, to such 
 
 COUl't. 
 
 491. The said bond shall bind the respective owners of the said ship, fi'eight, 
 and cargo, and their respective heirs, executors, and administrators, for the 
 salvage adjudged to be payable in respect of the saicl ship, freight, and cargo 
 respectively. 
 
 492. The said bond shall be adjudicated on and enforced by the High Court of 
 Admiralty in England, or if the said salvor and master at the time of the execu- 
 tion of the said bond agree upon any Vice- Admiralty Court, then by such Vice- 
 Admiralty Court ; and any such Vice- Admiralty Court may, in every proceeding 
 luider this Act, have and exercise all j^owers and authorities whatsoever, which 
 the said High Court of Admiralty now has or at any time may have in any pro- 
 ceeding whatsoever before it ; ancl in cases where any security for the due perform- 
 ance of the conditions of the said bond has been placed in the possession or 
 custody of the said consular officer or Vice- Admiralty Judge, or of such officer or 
 judge jomtly with any other person the person or persons having the custody of 
 such security shall resjaectively deal with the same in such manner as the court 
 that adjudicates on the bond dii'ects.
 
 17 & 18 VICT. c. 104 743 
 
 493. The said Higli Court of Admiralty shall have power to enforce any bond Power of High 
 given in pursuance of this Act, in any Vice- Admiralty Court in any part of ^°itI^to enforce 
 H. M.'s dominions; and all courts in Scotland, Ireland, and the Islands of Jersey, bonds. 
 Guernsey, Alderney, Sark, and Man, exercising Admiralty jurisdiction shall, 
 
 upon application, aid and assist the High Court of Admiralty in enforcing the 
 said bonds. 
 
 494. Any such salvor as aforesaid of any ship, cargo, or property, who elects ^^"f^^S clause, 
 not to proceed under this Act, shall have no power to detain the said ship, cargo, 
 
 or property, but may proceed otherwise for the enforcement of his salvage claim, 
 as if this Act had not been passed ; and nothing in this Act contained shall 
 abridge or affect the rights of salvors, except in the cases by it provided for. 
 
 495. All bonds, statements, agreements, and other documents, made or executed ][i.om'dutyf 
 in pursuance of the 8th part of this Act, shall, if so made or executed out of the 
 
 U. K., be exempt from stamp duty. 
 
 496. Every person who, in any proceeding under provisions contained in the fo™eryand*fa?se 
 8th part of this Act relating to salvage by H. M.'s ships, forges, assists in forging, rein-esentations. 
 or procures to be forged, fraudulently alters, assists in fraudulently altering, or 
 
 procures to be fraudulently altered any document, and every person who in any 
 such proceeding puts off or makes use of any such forged or altered document, 
 knowing the same to be so forged or altered, or who in any such proceeding gives 
 or makes, or assists in giving or making, or procures to be given or made, any 
 false evidence or representation, knowing the same to be false, shall be punishaljle 
 with imprisonment, witli or without hard labour, for any period not exceeding 
 2 years, or, if summarily prosecuted and convicted, by imprisonment, with or 
 without hard laboui", for any period not exceeding 6 months. 
 
 SalDage (General), ,5,,;,.^^^ 
 
 (GeneraO. 
 
 497. Whenever services for which salvage is claimed are rendered either by the Voluntary 
 commander or crew or part of the crew of any of H. M.'s ships, or of any other blmade wWdf 
 ship, and the salvor voluntarily agrees to abandon Ids lien upon the ship, cargo, shall have the 
 and property alleged to be salved, upon the master or other person in charge th"bond above 
 thereof entering into a written agreement, attested by two witnesses to abide the mentioned, 
 decision of the said High Court of Admiralty or of any Vice-Admiralty Court, 
 
 and thereby giving security in that behalf to such amount as may be agreed on by 
 the parties to the said agreement, such agreement shall bind the said ship and the 
 said cargo and the freight payable therefor respectively, and the respective owners 
 of the said ship, freight, and cargo for the time being, and their respective lieu-s, 
 executors, and administrators, for the salvage which may be adjudged to be pay- 
 able m respect of the said ship, cargo, and freight respectively, to the extent of the . 
 security so given as aforesaid, and may be adjudicated upon and enforced in the 
 same mannei- as the bonds provided for by the 8th part of this Act, in the case of 
 detention for salvage services rendered by H. M.'s ships ; and upon such agree- 
 ment being made, the salvor and the master, or other person in charge as afore- 
 said, shall respectively make such statements as are hereinbefore required to be 
 made by them in case of a bond being given, except that such statements need not 
 be made upon oath ; and the salvor shall, as soon as practicable, transmit the said 
 agreement and the said statements to the court in which the said agreement is to 
 be adjudicated upon. 
 
 498. Whenever the aggregate amount of salvage payable in respect of salvage Powers for 
 services rendered in the U. K. has been finally ascertained, and exceeds £200, and ^(Jui'raJty™^ 
 whenever the aggregate amount of salvage payable in respect of salvage services jurisdiction to 
 rendered elscAvhere has been finally ascertained, Avhatever such anioimt may be, ^'■P,^°^„*g°'* 
 then if any delay or dispute arises as to the apportionment thereof, any court ^^ ™° ' 
 having Admiralty jurisdiction may cause the same to be apportioned amongst the 
 
 persons entitled thereto, in such manner as it thinks just ; and may, for that 
 purpose, if it thinks fit, appoint any person to cany such apportionment into 
 effect, and may compel any person, in whose hands or under whose control such
 
 744j m. s. act, 1854, part 9, 
 
 amount may he, to distvibute the same, or to bring tlie same into convt, to be 
 there dealt with as the court may direct, and may, lor the purposes aforesaid, 
 issue such monitions or other processes as it thinks lit. 
 
 MisecUaneoTn. Miscellaneous. 
 
 Foreign goods 
 found derelict 
 
 to be subject to 499. All wreck, l)eing foreign goods brought or coming into the U. K. or the 
 !;^*!^^"i!!,V^vtr'^ Isle of Man, shall be subject to the same duties as if the same were imported into 
 tiou (a). the L . Jv. or the J sle ot Man respectively ; and it any question arises as to the 
 
 origin of such goods, they shall be deemed to he the produce of such country as 
 the Commissioners of Customs may, upon investigation, determine. 
 Goods saved 500. The Commissioners of Customs and Excise shall permit all goods, wares, 
 
 AvreckedTo be ^^^^ merchandise saved from any ship stranded or "ttTecked on its homeward 
 fonN-ardedtotho voyage to be forwarded to the port of its original destination, and all goods, wares, 
 ports of their ^^^^^ merchandise saved from any sliip stranded or A^Tecked on its outward voyage 
 tSn!°'' ^ ™''" to be retiu'ned to the port at which the same were shipped ; but such commis- 
 sioners are to take security for the due protection of the revenue in respect of such 
 goods, wares, and merchandise. 
 cTrtain°t€iins'in ' ^^^' ^^^ matters and things that may in pursuance of the Stli part of tliis 
 tjcotlaud. Act be done by or to any justice, or any two justices, may in Scotland be done 
 
 also liy or to the sheriff of the county, including the sheriff' substitute; and the 
 expression " Lord or Lady of a Manor" shall, in the 8th part of tliis Act, so far 
 as regards Scotland, include " Heritable Proprietor duly iiiieft.'' 
 
 PART IX. 
 
 LIABILITY OF SHIPOWNEKS. 
 
 Application. 
 
 Application. 
 
 AppiK^n of ^'•^2. The 9th part of this Act shaU apply to the whole of H. M.'s dominions. 
 
 Part IX. of Act, 
 
 Limitatioii of Limitation of Liahility (b). 
 
 Liahility. 
 
 ?^e^^^tlf°^^ ^^3. No o\m.eT of any sea-gomg ship or share therein shall be liable to make 
 cei-tain good any loss or damage that may happen without his actual fault or privity of or 
 
 articles (C)- to any of the following tilings ; (that is to say,) 
 
 (1.) Of or to any goods, merchandise, or other things whatsoever taken in or 
 put on board any such ship, by reason of any fire happening on board 
 such ship : 
 (2.) Of or to any gold, sih-er, diamonds, watches, jewels, or jn-ecious stones, 
 taken in or put on board any such ship, Ijy reason of any robbery, em- 
 bezzlement, making away with, or secreting thereof, unless the oAvner or 
 shipper thereof has, at the time of shipping the same, inserted in his bills 
 
 (n) See 18 & 19 Vict. c. 91. s. 19, jwst. (r) See Schmidt v. Roml Mail Steamship Co. 
 
 (.(») So2 2o & 26 Vict. c. 63, s. 54, iJOst. ia L. J. Q. B. 046, ante, i>p. 261, oUS.
 
 17 & 18 VICT. c. 104 745 
 
 of lading or otherwise declared in writing to the master or owner of such 
 ship the trne nature {d) and value (c) of such articles. 
 To any extent whatever. 
 
 .504. [Repealed by 25 & 26 Vict. c. 63, s. 2 ; see sects. 54 & 55 of this Act, ^josi.] 
 
 505. [Repealed by 25 & 26 Vict. c. 63, s. 2.] 
 
 506. Tiie owner of every sea-going ship or share therein shall be liable in Provision for 
 respect of every such loss of life, personal injury, loss of or damage to goods as loggeg^//), 
 aforesaid arising on distinct {g) occasions to the same extent as if no other loss, 
 
 injury, or damage had arisen. 
 
 Mode of Procedure. ^^^^^^ ^^ 
 
 Procedure. 
 
 50?. Wlienever any such liability as aforesaid has been or is alleged to have incaseof lossof 
 been incurred in respect of loss of life or personal injiuy, the Board of Trade may, life or personal 
 in its discretion, after giving not less than three days' notice by post or otherwise Trade'may^^ 
 to the party to be made defendant or defender, by warrant sealed witli tlie seal of direct proceed, 
 such board, or signed by one of its secretaries or assistant secretaries, ref|uire the '"^s. 
 sheriff having jurisdiction over any place in the U. K. to summon a jury at a 
 time and place to be specified in such warrant for the purpose of determining the 
 following (juestion ; (that is to say,) 
 
 The number, names, and descriptions of all persons killed or injured liy reason 
 of any wrongful act, neglect, or default ; 
 And upon the receipt of such warrant the sheriff shall summon a jury of 24 
 indifferent persons, duly qualified to act as common jurymen in the superior 
 courts, to meet at sucli time and place as aforesaid. 
 
 508. If either party to the inquiry desire any such (question as aforesaid to be Either party 
 tried before a special jury, such question shall be so tried, provided that notice of ™ay require 
 such desu'e, if coming from the other party, is given to the Board of Trade before tded by a" 
 it has issued its warrant to the sheriff; and for that purpose the Board of Trade special jury. 
 
 . shall, by its warrant to the sheriff", require him to nominate a special jury for such 
 trial ; and thereupon the sheriff shall, as soon as conveniently may be after the 
 receipt by him of such warrant, summon both the parties to appear before him by 
 themselves or their attornies or agents at some convenient time and place 
 appointed by liim for the purpose of nominating a special jury; and at the place 
 and time so appointed the sheriff" shall proceed to nominate and strike a special 
 jury in the mamier in wliich such juries are required by the laws for the time 
 being in force to be nominated or struck by the proper officers of the superior 
 courts; and the sheriff" shall appoint a day, and shall on the day so appointed 
 proceed to reduce the said sj)ecial jury to the number of 20, in the manner used 
 and accustomed by the proper officers of the superior courts. 
 
 509. The following provisions shall be applicable to the conduct of proceedings Provisions for 
 by the Board of Trade ; (that is to say,) conduct of 
 
 (1.) The sheriff' shall preside at such inquiry, and the Board of Trade shall be ^^^^^^ "*^^* 
 deemed in England and Ireland to be the plaintiff", and in Scotland the 
 pursuer, both of which terms are herein-after included in the term 
 plaintiff, with power to appoint any agent to act on his behalf, and shall 
 have all sucli rights and privileges as the plaintiff" is entitled to in actions 
 at law ; and the OAvner or owners of the ship or ships by whom sucIi 
 liability as last aforesaid is alleged to have been incurred shall be 
 deemed in England and Ireland to be the defendant, and in Scotland 
 the defender, both of which terms are hereinafter included in the term 
 defendant : 
 
 (2.) Not less than 10 days' notice of the time and place of the inquiry shall be 
 served by the Board of Trade on the defendant: 
 
 (<l) Gibbs V. Pottpr, 10 M. & W. 70. (o) Sec the Rajah, L. R. 3 A. & E. 639, where 
 
 (e) Williams V. The African iSteavi Slii}} Com' two vessels were injured, and it was held that 
 
 inimj, 1 II. &. N. 300 ; 26 L. J. Ex. p. 68. the occasions were not distinct. 
 (/) See 25 & 26 Vict. c. 63, s. 56, post.
 
 746 M. s. ACT, 1854, paet 9, 
 
 (3.) Service on the master of any ship shall be deemed good service on the 
 owner thereof, and the master shall, in respect of the proceedings on 
 such inqimy, he deemed the agent and le^jresentative of the owner, Avith 
 power to appear for him on such inqiury, and to do all matters and 
 things Avhich he might himself have done : 
 
 (4.) If the defendant does not appear at the time of such inquir)'', the same shall 
 be proceeded with as if he had appeared, upon due proof of ser^dce of 
 notice having been made on him in pursuance of this Act : 
 
 (5.) The emi)annelling of the jury and the summoning and attendance of Avit- 
 nesses shall be condiicted and enforced in England and Ireland in 
 manner provided by the " Lands Clauses Consolidation Act, 1845," in 
 cases of disputed compensation as to land, and in Scotland in manner 
 provided by the "Lamls Clauses Consolidation (Scotland) Act, 1845," in 
 like cases, or as near thereto as circumstances permit ; and all provisions 
 in the said Acts having reference to cases where any (|uestion of disputed 
 compensation requires to be determined by the verdict of a jury shall, 
 with the requisite alterations, be considered as incorporated Avith this 
 Act, and to ha\-e reference to cases Avhere the question of the liability of 
 any OAvner in respect of any such accident as aforesaid requires to be 
 determined by the A'erdict of a jurj-- : 
 
 (6.) In England and Ireland the sheriff shall, if the Board of Trade so requires, 
 or if the defendant so requii-es, and the Board of Trade consents 
 thereto, appoint as assessor a barrister-at-Iaw, of competent knowledge 
 and standing : 
 « (7.) The costs incurred by all parties in and incidental to any such inquiry as 
 
 aforesaid shall in England and Ireland be taxed by the master of one of 
 H. j\I.'s Superior Courts of Conmion LaAV as betAveen attorney and client, 
 and ill Scotland by the auditor of the Court of Session as betAveen agent 
 and client ; and shall, if the A^erdict in any inquiry is in faA'our of the 
 plaintiff, be paid liy the defendant, but if such verdict is in favom- of the 
 defendant, lie paid by the Board of Trade out of the mercantile marine 
 fund : 
 
 (8.) The payment of all damages and costs in any such inquiry as aforesaid 
 shaD, upon application made to such superior court as aforesaid by the 
 party entitled thereto, be enforced by rule or order of such court or a 
 judge thereof, or otherAvise as such court or judge thinks fit : 
 
 (9.) The Board of Trade may make any compromise it tliinks fit as to the 
 damages payable in respect of personal injury, or of the death of any 
 person; and any damages received in pursuance of such compromise 
 shall, so far as the same extend, be applied in the same manner and be 
 subject to the same rules as if the same Avere damages recoA'ered on an 
 inquiry instituted by the Board of Trade : 
 Ruies^asto j^jq^ ipj^g folloAA'ing rules shall be observed as to the damages recoA'ered in any 
 
 iippi'iaitiou such inquuy, and the application thereof; (that is to say,) 
 
 thereof. (1.) The damages payable in each case of death or injury shall be assessed at 
 
 30/. (a): 
 
 (2.) The damages found due on any such inquiiy as aforesaid shall be the first 
 charge on the aggregate amount for Avliich the OAvner is liable, and shall 
 be paid thereout in priority to all other claims : 
 
 (3.) All such damages as aforesaid shall be paid to H. M.'s paymaster-general, 
 and shall be distributed and dealt A\-ith l)y him in such manner as the 
 Board of Trade dii-ects ; and in directing such distribution, the Board of 
 Ti-ade shall have power in the first place to deduct and retain any costs 
 incidental thereto ; and, in the next place, as regards the sums paid in 
 respect of injuries, shall direct payment to each person injured of such 
 compensation, not exceeding in any case the statutoiy amoimt, as the 
 said Board thinks fit ; and as regards the sums j^aid in respect of deaths, 
 shall dii'ect payment thereof for the benefit of the husband, A\ife, i^arent, 
 
 (o) This limit applica ouly to damages assessed uuder buch an inquiry. Gluholm t. Barlxr, L. B, 
 2 Eq. Ci.12.
 
 17 & 18 VICT. 0. 104. 747 
 
 and child of tlie deceased, or any of them, in such shares, upon such 
 evidence, and in such manner as the said board thinks fit : 
 
 (4.) The Board of Trade shall refund to the owner any surjiliis remaininc; 
 under its control after making such distribution as aforesaid, and the 
 sum so refunded shall form part of the residue herein-after mentioned : 
 
 (5.) The Board of Trade shall not, nor shall any person acting under it, be 
 liable to any action, suit, account, claim, or demand whatsoever, for or 
 in respect of any act or matter done, or omitted to be done, in the distri- 
 bution of such damages as aforesaid : 
 
 (6.) If the amount paid to H. M.'s iJaymaster-general in manner aforesaid is 
 insufficient to meet the demands upon it, the several claims thereon 
 shall abate jDroportionally. 
 
 511. After the completion of such inquiry as aforesaid, if any person injured Any person who 
 estimates the damages payable in respect of such injury, or if the executor or is dissatisfied 
 administrator of any deceased person estimates the damages payable in respect of ^f statutory"™ 
 his death, at a greater sum than such statutory amount, or, in case of a compro- damage may 
 mise having been made l^y the Board of Trade, than the amount accepted by such on h?s owu^"°^ 
 board by way of compensation for such injury or death as aforesaid, the person so account, 
 estimating the same shall, upon repaying or obtaining the repayment by the 
 
 Board of Trade to the owner of the amomit paid by him to the Board of Trade in 
 respect of such injiuy or death, be at liberty to bring an action for the recovery of 
 damages in the same manner as if no power of instituting an inquiry had herein- 
 before been given to the Board of Trade, subject to the following proviso ; (that 
 is to say,) that any damages recoverable by such persons shall be payable only out 
 of the residue, if any, of the aggregate amount for which the owner is liable, after 
 deducting all sums paid to H. M/s paymaster-general in manner aforesaid ; and 
 if the damages recovered in such action do not exceed double the statutory amount, 
 such person shall pay to the defendant in such action all the costs thereof, such 
 costs to be taxed in England and Ireland as between attorney and client, and in 
 Scotland as between agent and client. 
 
 512. In cases where loss of life or personal injury has occurred by any accident if Board of 
 
 in respect of which the owner of any such ship as aforesaid is or is alleged to be Trade decline to 
 
 liable in damages, no person shall be entitled to bring any action, or institute any ccldtags, 'indi- 
 
 suit or other legal proceeding in the U. K., until the completion of the inquiry viduaismay 
 
 (if any) instituted by the Board of Trade, or until the Board of Trade has refused ^^'^^° actions. 
 
 to institute the same ; and the Board of Trade shall, for the purpose of entitlinrr 
 
 any person to bring an action or institute a suit or other legal proceeding, be 
 
 deemed to have refused to institute such inquiry whenever notice has been served 
 
 on it by any person of his desire to bring such action or institute such suit or 
 
 other legal proceeding, and no incpiry is instituted by the Board of Trade in 
 
 respect of the subject-matter of such intended action, suit, or proceeding, for the 
 
 space of one month after the service of such notice. 
 
 513. Whenever the Board of Trade, having refused in manner aforesaid to insti- Proceedings by 
 tute any inquiry, afterwards determines to institute the same, the damages and afte^retea?*^^ 
 costs (if any) recovered on sucli inquiry shall be payable rateably with and not in 
 
 priority to the costs and damages recovered in any other action, suit, or le-^al 
 proceeding. 
 
 514. In cases where any liability has been or is alleged to have been incurred Proceedings in 
 by any owner in respect of loss of life, personal injury, or loss of or damage to case of several 
 ships, boats, or goods, and several claims are made or apprehended in respect of ma™'ol^o^vncr 
 such liability, then, subject to the right herein-before given to the Board of Trade of shii?. 
 
 of recovering damages in the U. K. in respect of loss of life or personal injury, it 
 shall be lawful in England or Ireland for the High Court of Chancery (b), and in 
 Scotland for the Court of Session, and in any British possession ioi any competent 
 court to entertain proceedings, at the suit of any owner for the j)urpose of deter- 
 
 (i) See 23 & 24 Vict. c. 126 (the C. L. P. Act, L. J. Ad. 71. As to the jurisdiction and practice 
 
 i860), s. 35; Jud. Act, 18(3, s. 24. As to the of the Court of Admiralty before this statute, 
 
 Admiralty Court having jurisdiction under the see The Saracen, 2 W. Rob. 451 ; 11 Jurist. 255 • 
 
 514th section, when a ship is under arrest, sec 6 Moore, P. C, 06. The Ctara Swab 6, ' 
 24 Vict. c. 10, s. 13, p05(. The Franconia, 46
 
 748 
 
 M. S. ACT, 1854, PART 10, 
 
 mining tlic amount (a) of siicli liability subject as aforesaid, and for tlie distribu- 
 tion of sucli amount rateably amongst the several claimants, with power for any 
 such court to stop all actions and suits pending in any other com-t in relation 
 to the same subject-matter ; and any proceeding entertained by such Coiu-t of 
 Chancery or Court of Session, or other competent court, may be conducted in 
 such manner and subject to such regulations as to making any persons interested 
 parties to the same, and as to the exclusion of any claimants who do not come in 
 within a certain time, and as to reqiiii-Lng security from the owTier, and as to 
 payment of costs, as the court thinks just. 
 Money paid for 515. AH sums of money paid for or on account of any loss or damage iu respect 
 damage how to -whereof the liability of the owners of any ship is limited by the 9th part of this 
 between pa^-c °^ ^^t, and all costs incurred in relation thereto, may be brought into account 
 owners. among jjart-owners of the same ship in the same manner as money disbursed for 
 
 the use thereof. 
 
 isavino Clause. 
 
 Saving Clause. 
 
 Siiviug clause. 516. Nothing in the 9th part of this Act contained shall be construed— 
 
 To lessen or take away any liability to which any master or seaman, being 
 
 also owner or part-owner of the ship to which he belongs, is subject in his 
 
 capacity of master or seaman ; or. 
 To extend to any British ship not being a recognized British ship within the 
 
 meaning of this Act. 
 
 PART X. 
 
 LEGAL PKOCEDUKE. 
 
 Application. 
 
 Application. 
 
 Part'x^oniie ^^*^- '^^^^ ^^^^^ P'"^^*^ °^ ^^^^^ "^^^ ^^^^^ "^ ^^ ^^^^^' where no particular country 
 Act. ' is mentioned, apply to the whole of H. M.'s dominions {b). 
 
 Legal Procedure 
 (.General). 
 
 Ptmisliment of 
 offences, and 
 recovery of 
 penalties. 
 
 Legal Procedure (General). 
 
 518. In all places within H. ]\I.'s dominions, except Scotland, the offences 
 hereinafter mentioned shall be punished and penalties recovered in manner 
 following ; (that is to say,) (c) 
 
 (1.) Every offence by this Act declared to be a misdemeanor shall be punish- 
 able by fine or imprisonment, with or -without hard labour ; and the 
 
 (.a) The jurisdiction of the Court of Chancery 
 under this section is simply to determine the 
 amount of the ship-owner's liability, and distri- 
 hutc that amount among the several claimants ; 
 not to decide the question of liability or non- 
 liability. Hin V. Andrews, 24 L. J. Ch. 229. A 
 judgment in a cause of collision having been ob- 
 tained in the Court of Admiralty against a ship, 
 the value of which was insufficient to pay all the 
 claims upou it of the persons interested iu the 
 
 ship and cargo which had been lost, the plaintiff 
 in Admiralty was allowed to sell the ship, but 
 ordered to pay the proceeds into court for equal 
 distribution under the Act. Lei/cester v. Loyan, 
 26 L. J. Ch. 306 ; Glaliolm v. Barlcer, L. K. 2 E<i. 
 604. 
 
 (h) And see 18 & 19 Vict. c. 91, s. 21. 
 
 (e) As to offences by British subjects on board 
 .ships to which they do not belong, see sec, U of 
 30 iS; 31 Vict. c. \2i,post.
 
 17 & 18 vioT. c. 104. 749 
 
 court before wliicli such oflence is tried may in England make tlie same 
 allowances and order jiaynient of the same costs and expenses as if such 
 misdemeanor had 1 )een enumerated in the Act 7 Geo. 4, c. 64, or any 7 Goo. 4, c, G4. 
 other Act that may be jjassed for the like ^^urpose ; and may in any 
 other jiavt of H. M.'s dominions make such allowances and order pay- 
 ment of such costs and expenses (if any) as are payable or allowable 
 upon the trial of any misdemeanor under any existing Act or ordinance, 
 or as may be payable or allowable under any Act or law for the time 
 being in force therein : 
 
 (2.) Every offence declared by this Act to be a misdemeanor shall also be 
 deemed to be an offence hereby made punishable by imprisonment for 
 any period not exceeding 6 months, with or without hard labour, or by 
 a penalty not exceeding £100, and may be prosecuted accordingly in a 
 summary manner instead of being prosecuted as a misdemeanor : 
 
 (3.) Every offence hereby made punishable by imprisonment for any period not 
 exceeding 6 months, with or without hard labour, or by any penalty not 
 exceeding £100, shall in England and Ireland be prosecuted summarily 
 before any two or more justices, as to England in the manner directed 
 by the Act of the 11 & 12 Vict. c. 43, and as to Ireland in the manner 
 directed by the Act of tlie 14 & 15 Vict. c. 93, or in such other manner 
 as may be dii'ected by any Act or Acts that may be passed for like pur- 
 poses : and all provisions contained in the said Acts shall be applicable 
 to such prosecutions in the same manner as if the offences in respect of 
 which the same are instituted were hereby stated to be offences in respect 
 of which two or more justices liaA'e power to convict summarily or to 
 make a summary order : 
 
 (4.) In all cases of summary convictions in England, where the sum adjudged 
 to be paid exceeds £5, or the period of imprisonment adjudged exceeds 
 one month, any person who thinks himself aggrieved by such conviction 
 may appeal to the next court of general or quarter sessions, wliich is 
 holden not less than 12 days after the day of such conviction for the 
 county, city, borough, liberty, riding, division, or place wherein the case 
 lias been tried ; provided that such person shall give to the complainant 
 a notice in writing of sucli appeal, and of the cause and matter thereof, 
 within 3 days after such conviction, and 7 clear days at the least 
 before such sessions, and shall also either remain in custody until the 
 sessions, or enter into a recognizance, with 2 suthcient sureties, before a 
 justice of the peace, conditioned personally to appear at the said sessions, 
 and to try such appeal, and to abide the judgment of the court there- 
 upon, and to pay such costs as shall be by the court awarded ; and upon 
 such notice being given, and such recognizance being entered into, the 
 justice before whom the same shall be entered into shall liberate such 
 person, if in custodj' ; and the court at such sessions shall hear and 
 determine the matter of the appeal, and shall make such order therein, 
 with or without costs to either party, as to the court shall seem meet ; 
 and in case of the dismissal of tlie appeal, or the affirmance (^ the con- 
 viction, shall order and adjudge the offender to be punished according to 
 the conviction, and to ]3ay such costs as may be awarded, and shall, if 
 necessary, issue process for enforciiig such judgment : 
 
 (5.) All offences under this Act shall, in any British possession, be ijunishable 
 in any court or by any justice of the peace or magistrate, in which or by 
 whom offences of a like character are ordmarily punishable, or in such 
 other manner, or by such other courts, justices, or magistrates, as may 
 from time to time be determined by any Act or ordinance duly made in 
 such possession, in such manner as Acts and ordinances in such pos- 
 session are required to be made in order to have the force of law. 
 
 519. Any stipendiary^ magistrate shall have full power to do alone whatever Stipenaiary 
 two justices of the peace are by this Act atithorized to do. magistrate to 
 
 520. For the purpose of giving jurisdiction under this Act, every offence shall as two^justices" 
 be deemed to have been committed, and every cause of complaint to have arisen, Offence where 
 either in the place in which the same actually was committed or arose, or in any been comnmctl. 
 place in which the offender or person complained against may be.
 
 760 
 
 M. S. ACT, 1854, PART 10, 
 
 Jurisdiction 
 over ships lying 
 off the coasts. 
 
 Service to be 
 good if made 
 personally, or on 
 board ship. 
 
 Sums ordered to 
 be paid leviable 
 by distress on 
 ship. 
 
 Application of 
 penalties. 
 
 Limitation of 
 time in summary 
 proceedings. 
 
 521. In all cases where any district within which any conrt or justice of the 
 peace or other magistrate has jimscliction, either under tliis Act or under any 
 other Act, or at common law, for any purpose whatever, is situate on the coast of 
 any sea, or abutting on or projecting into any bay, chamiel, lake, river, or other 
 navigable water, every such court, justice of the peace, or magistrate, shall have 
 jurisdiction over any ship or boat being on, or lying or passing off such coast, or 
 being in or near such bay, channel, lake, river, or navigable water as aforesaid, 
 and over all j)ersons on board such ship or boat, or for the time being belonging 
 thereto, in the same manner as if such ship, boat, or persons were within the 
 limits of the original jurisdiction of such court, justice, or magistrate. 
 
 522. Service of any summons or other matter in any legal proceeding under 
 this Act shall be good service, if made iDersonally on the person to be served, or 
 at his last place of abode, or if made by leaving such summons for him on board 
 any sliip to which he may belong mth the person being or appearing to be in 
 command or charge of such ship. 
 
 523. In all cases where any court, justice or justices of the peace, or other 
 magistrate, has or have power to make an order directing payment to be made of 
 any seaman's wages, penalties, or other sums of money, then, if the party so 
 directed to pay the same is the master or owner of a ship, and the same is not 
 paid at the time and in manner prescribed in the order, the court, justice or 
 justices, or other magistrate who made the order, may, in addition to any other 
 powers thej'- or he may have for the purj^ose of compelling payment, direct the 
 amount remaining unpaid to be levied by distress or poindmg and sale of the said 
 ship, her tackle, furniture, and apparel (a). 
 
 524. Any court, justice, or magistrate imposing any penalty itnder this Act, for 
 which no specific application is herein provided, may, if it or he thinks fit, direct 
 the whole or any part thereof to be applied in compensating any person for any 
 Avrong or damage wliich he may have sustained by the act or default in respect of 
 which such penalty is imposed, or to be applied in or towards payment of the 
 expenses of the proceedings ; and subject to such directions or specific application 
 as aforesaid, all penalties recovered in the U. K. shall be paid into the-receijDt of 
 H. M.'s Exchequer in such manner as the Treasury may direct, and shall be 
 carried to and form part of the Consolidated Fund of the U. K. ; and all penalties 
 recovered in any British possession shall be j)aid over into the pubUc treasury of 
 such possession, and form part of the piiblic revenue thereof. 
 
 525. The time for instituting summary proceedings under this Act shall be 
 limited as follows ; (that is to say,) 
 
 (1.) No conviction for any oft'ence shall be made under this Act in any sum- 
 mary proceeding instituted in the U. K., unless such proceeding is 
 commenced within 6 months after the commission of the offence ; or if 
 both or either of the parties to such proceeding happen during such time 
 to be out of the U. K., tmless the same is commenced withm 2 months 
 after they both first happen to arrive or to be at one time within the 
 same : (b) 
 
 (2.) No conviction for any oifence shall be made under this Act in any proceed- 
 kig instituted in any British possession, unless such proceeding is com- 
 menced within 6 months after the commission of the oft'ence ; or if 
 both or either of the parties to the jjroceeding happen during such time 
 not to be within the jurisdiction of any court capable of dealing ^\dth 
 the case, unless the same is commenced within 2 months after they both 
 first happen to arrive, or to be at one time Anthin such jurisdiction : 
 
 (3.) No order for the payment of money shall be made under this Act in any 
 summary proceeding instituted in the U. K., unless such proceeding is 
 commenced within 6 months after the cause of complaint arises ; or, if 
 both or either of the jDarties happen during such time to be out of the 
 U. K., ruiless the same is commenced within 6 months after they both 
 first happen to arrive, or to be at one time within the same : 
 
 (4.) No order for the payment of money shall be made under this Act in any 
 summary proceeding instituted in any British possession, unless such 
 
 (a) Sec Tlie Westmordaiiil, i Kotes of Cases, 
 173. 
 
 (b) Austin V. Olsai: 37 L. J. M. C. 34.
 
 17 & 18 VICT. c. 104 751 
 
 proceeding is commenced within six montlifs after tlie cause of complaint 
 arises ; or, if both or either of the parties to tlie proceeding;- hapjien 
 during such time not to be within the jurisdiction of any court capable 
 of dealing with the case, unless the same is commenced within 6 months 
 after they both first happen to arrive or be at one time within such juris- 
 diction : 
 And no provision contained in any other Act or Acts, ordinance or ordinances, for 
 limiting the time within which summary proceedings may be instituted, shall 
 affect any summary proceedings under this Act. 
 
 526. Any document required by this Act to be executed in tlie presence of or to Document 
 
 be attested by any witness or witnesses, may h& proved by the evidence of any caT^ng ^teltiii"- 
 person who is able to bear witness to the recpiisite facts, without calling the attest- witness. 
 mg witness or witnesses or any of them. 
 
 527. "Whenever any injury has, in any part of the world, been caused to any Power of Judge 
 property (c) belonging to H. M. or to any of H. M.'s subjects by any foreign ship, Rcrard'^or ^ 
 
 if at any time thereafter such ship is found in any port or river of the U. Admiralty to 
 K. or within 3 miles of the coast thereof, it shall be lawful for the judge arrest foreign 
 of any court of record in the U. K., or for the judge of the High Court of occasioned ' " 
 Admiralty, or in Scotland the Court of Session, or the sheriff of the county damage, 
 within whose jurisdiction such ship may be, upon its being shown to him by any 
 person applying sixmmarily that sucli injury was probably caused by the miscon- 
 duct or* want of skill of the master or mariners of such ship, to issue an order 
 directed to any officer of customs or other officer named by such judge, requiring 
 him to detain such ship until sucii time as the owner, master, or consignee thereof 
 has made satisfaction in respect of such injury, or has given security, to be 
 approved by the judge, to abide the event of any action, suit or other legal pro- 
 ceeding that may be instituted in respect of such injury, and to pay all costs and 
 damages that may be awarded tliereon ; and any officer of customs or other officer 
 to whom such order is directed shall detain such ship accordingly. 
 
 528. In any case where it appears that before any application can be made Power in certain 
 under the foregoing section such foreign sliip will have departed beyond the shhTbe^fore'*'" 
 limits therein mentioned, it shall be lawful for any commissioned officer on full application 
 pay in the miUtaiy or naval service of H. M., or any British officer of customs, i^^ade to judge, 
 or any British consular officer, to detain such ship until such time as will allow 
 
 such application to be made and the result thereof to be communicated to him ; 
 and no such officer shall be liable for any costs or damages in respect of such 
 detention unless the same is j)roved to have been made without reasonable 
 grounds. 
 
 529. In any action, suit, or other proceeding in relation to such injury, the who to be 
 person so giving security as aforesaid shall be made defendant or defender, and defendant to 
 shall be stated to be the owner of the ship that has occasioned such damage ; and cases'^ ^"*^'' 
 the production of the order of the judge made in relation to such security shall 
 
 be conclusive evidence of the liability of such defendant or defender to such 
 action, suit, or other proceeding. 
 
 Legcd Procedure (Scotland). Leoai procedure 
 
 {Scotland). 
 
 530. In Scotland, every offence which by this act is described as a felony or offences punish 
 misdemeanor may be prosecuted by indictment or criminal letters at the instance ^^^^ ^^ J"'^- 
 of H. M.'s advocate before the High Court of Justiciary, or by criminal libel at <ie"ieanors. 
 the instance of the procurator fiscal of the county before the sheriff, and shall be 
 punishable with fine and with imprisonment, with or without hard labour in default 
 
 of payment, or with imprisonment, with or without hard labour, or wdth both, as the 
 coiu?t may think fit, or in the case of felony with penal servitude, where the court 
 is competent thereto ; and such court may also, if it think fit, order payment 
 by the offender of the costs and expenses of the prosecution. 
 
 531. In Scotland, all prosecutions, complaints, actions, or proceedings under o ■.■^■m 
 ^ proceedings. 
 
 (c) Harris V. Od-ners of the Franconia, 2 L. R. C. F. D. 173 ; 45 h. J. C. P. 363 ; see 31 & 32 Vict. 
 c. 71, s. 28.
 
 752 
 
 H. S. ACT, 1854, PART 10, 
 
 Form of 
 complaint. 
 
 Mode of requir- 
 ing appearance 
 of defender and 
 witnesses. 
 
 Backing arrest- 
 ments. 
 
 Compelling 
 attendance of 
 witnesses. 
 
 Proceedings to 
 be viva voce. 
 
 Power to 
 adjoui-n. 
 
 Sentence to be 
 in writina-. 
 
 Imprisonment 
 t" be Inflicted in 
 •lef.iult of pay- 
 ment. 
 
 this Act, other than prosecutions for felonies or misdemeanors, may be brought in 
 a sunnnary form before the sheriff of the county, or before any two justices of the 
 peace of the county or Inirgh where the cause of such prosecution or action arises, 
 or where the otfender or defender may be for the time, and when of a criminal 
 nature, or for penalties, at the instance of the prociu'ator fiscal of court, or at the 
 instance of any party aggrieved, witli concurrence of the procurator fiscal of coitrt ; 
 and the court may, if it think fit, order payment by the oft'ender or defender of 
 the costs of the prosecution or action. 
 
 532. In Scotland, all prosecutions, complaints, actions, or other proceedings 
 under tliis Act may be brought either in a written or printed form, or partly 
 ■written and partly printed, and where such proceedings are brought in a summary 
 form it shall not be necessary in the complaint to recite or set forth the clause or 
 clauses of the Act on which such proceeding is founded, but it shall be sufficient 
 to specify or refer to such clause or clauses, and to set forth shortly the cause of 
 complaint or action, and the remedy sought ; and when such complaint or action 
 is brought in whole or in part for the enforcement of a pecuniary debt or 
 demand, the complaint may contain a prayer for warrant to arrest upon the 
 dei^endence. 
 
 533. In Scotland, on any complaint or other proceeding brought in a summary 
 form under this Act being presented to the sherrff-clerk or clerk of the peace, he 
 shall gi'ant warrant to cite the defender to appear personally before the said sheriff 
 or justices of the peace on a day fixed, and at the same time shall appoint a copy 
 of the same to be deHvered to him by a sherilf officer or constable, as the case may 
 be, along with the citation ; and such deliverance shall also contain a warrant for 
 citing witnesses and havers to compear' at the same time and place to give e^^.dence 
 and produce such -v^-rits as may be specified in thek citation ; and where such 
 warrant has been prayed for in the complaint or other proceeding, the deliverance 
 of the sheriff-clerk or clerk of the peace shall also contain a waiTant to arrest 
 upon the dependence in common form ; proWded always, that where the appre- 
 hension of any party, with or without a warrant is authorized by this Act, such 
 party may be detained in custody until he can be brought at the earliest opportu- 
 nity before any two justices or the sheriff who may have jurisdiction in the place, 
 to be dealt -with as this Act directs, and no citation or induciae shall in such case 
 be necessary. 
 
 534. WTien it becomes necessary to execute such arrestment on the dependence 
 against goods or eftects of the defender within Scotland, but not locally situated 
 within the jurisdiction of the sherift" or justices of the peace by M'hom the warrant 
 to arrest has been granted, it shall be competent to caiTy the warrant into 
 execution on its being indorsed by the sheriff-clerk or clerk of the peace of the 
 county or burgh respectively Avithin which such warrant comes to be executed. 
 
 535. In all proceedings under this Act in Scotland, the sheriff or justices of the 
 peace shall have the same power of compelling attendance of witnesses and havers 
 as in cases falliug under their ordinary jurisdiction. 
 
 536. The whole procediu-e in cases brought in a summary form before the sheriff 
 or justices of the peace in Scotland shall be conducted viva voce, without written 
 pleadings, and without taking do^vn the evidence in writing, and no record shall 
 be kept of the proceedings, other than the complaint, and the sentence or decree 
 pronoimced thereon. 
 
 537. It shall be in the power of the sherift' or justices of the peace in Scotland 
 to adjourn the proceedings from time to time to any day or days to be fixed by 
 them, in the event of absence of witnesses, or of any other cause which shall 
 appear to them to render such adjournment necessarj*. 
 
 538. In Scotland, all sentences and decrees to be pronoimced by the sheriff or 
 justices of the peace upon such summary complaints shall be in writing ; and 
 where there is a decree for pajTuent of any sum or sums of money against a 
 defender, such decree shall contain warrant for arrestment, poinding, and im- 
 prisonment in default of papnent, such arrestment, poinding, or imprisonment to 
 be carried into effect by sheriffs' officers or constables, as the case may be, in the 
 same manner as in cases arising under tlie ordinary jurisdiction in the sheriff or 
 justices : Provided always, that nothing herein containol shall be taken or con- 
 strued to repeal or affect Vn Act of 5 & 6 Will. 4, intituled " An Act for abolishing, 
 in Scotland, Imprisonment for Civil Debts of small Amount."
 
 17 & 18 VICT. 0. 104. 753 
 
 539. In all smmnary complaints and proceedings for recovery of any penalty or Sentcrico and 
 sum of money in Scotland, if a defender ■who has been duly cited shall not appear 'J^'f "^^I'^of'^ 
 at the time and place required by the citation, he shall be held as confessed, and defender's 
 sentence of decree shall be pronounced against him in terms of the complaint, appearance, 
 with such costs and expenses as to the court shall seem fit : provided always, that 
 
 lie shall be entitled to ol)tain himself reponed against any sucli decree at any time 
 before the same be fully implemented, by lodging ^\-ith the clerk of court a repon- 
 ing note, and consigning in his hands the sum decerned for, and the costs ■which 
 had been awarded by the court, and on the same day delivering or transmitting 
 through the post to the pursuer or his agent a copy of such reponing note ; and a 
 certificate by the clerk of court of such note ha^v^ng been lodged shall operate as a 
 sist of diligence till the cause shall have been reheard and finally disposed of, 
 which shall be on the next sitting of the court, or on any day to which the court 
 shall then adjourn it. 
 
 540. In all summary complaints or other proceedings not brought for the Warrant to 
 recovery of any penalty or sum of money in Scotland, if a defender, being duly defauit'^of ^ 
 cited, shall fail to appear, the sherift' or justices may grant a warrant to apprehend appearance, 
 and bring him before the court. 
 
 541. In all cases where sentences or decrees of the sheriff or justices require to Backing 
 
 be enforced within Scotland, but beyond the jurisdiction of the sherift' or justices sentences or 
 by whom such sentences or decrees have been pronounced, it shall be competent '^^^'*^'^''* 
 to carry the same into execution upon the same being indorsed by the sherift'-clerk 
 or clerk of the peace of the comity or burgh within which such execution is to 
 take place. 
 
 542. No order, decree, or sentence pronounced by any sheriff or justice of the OrJei's not to be 
 peace in Scotland under the authority of this Act shall be quashed or vacated for wanVof form • 
 any misnomer, informality, or defect of form; and all orders, decrees, and sen- and to be final', 
 fences so pronounced shall be final and conclusive, and not subject to suspension, 
 advocation, reduction, or to any form of re-\T.ew or stay of execution, except on 
 
 the ground of corruption or malice on the part of the sherift' or justices, in which 
 case the suspension, advocation or reduction must be brought within fourteen 
 days of the date of the order, decree, or sentence complained of ; provided always, 
 that no stay of execution sliall be competent to the eft'ect of preventing immediate 
 execution of such order, decree, or sentence. 
 
 543. Such of the general provisions ■\\ith respect to jurisdiction, procedure, and General rule?, so 
 jienalties contained in this Act as are not inconsistent with the special rules herein- ab^g^to ext "^li i 
 before laid dovm. for the conduct of legal proceedings and the recovery of penalties to penalties ana 
 in Scotland, shall, so far as the same are applicable, extend to such last-mentioned pi'oceedings in 
 proceedings and penalties : provided always, that nothing in this Act contained '^^ ^^ ' 
 shall be held in any way to annul or restrict the common law of Scotland with 
 
 regard to the prosecution or punishment of oft'ences at the instance or by the 
 direction of the lord-advocate, or the rights of owners or creditors in regard to 
 enforcing a judicial sale of any ship and tackle, or to give to the High Court of 
 Admiralty of England any jimsdiction in respect of salvage in Scotland which it 
 has not heretofore had or exercised. 
 
 PAET XI. 
 
 MISCELLANEOUS, Miscella'iUOUS. 
 
 544. It shall be lawful for any master or ©■«Tier of a ship, or his agent, to enter Contracts may 
 
 be made -with 
 
 into contracts with lascars or natives of the territories of the East India company, natives 
 
 es m 
 
 binding them to proceed to any port or ports in the Australian colonies, either as India, nnder 
 
 seamen or as passengers, and there to engage themselves as seamen in any ship ';?J.'^''*''^ 99'^", . 
 
 1 • T T ■'■ i 1 ii 1 ^ T T ° 1 ^ J.T TT ^r X ii . ilitions, bmdmg 
 
 Avlnch may happen to be there and to be bound to the U. K. or to any other part tbemtogoto 
 
 of H. ]\I.'s dominions : pTO\uded that every such contract shall be in such form, Australia, and 
 
 and shall contain such pro"nsions, and shall be executed in such manner, and ^^^'^^°*'°^^^^'^ 
 
 3c
 
 754 M. S. ACT, 1854, SCHEDULE, 
 
 in other ships Tinder siicli conditions for securing the return of such lascars or natives to their 
 K^li'i^^'^V'^'^^ own country, and for other purposes, as the govemor-,^'eneral of India in council, 
 '"^ ■ or the governors of the respective presidencies, in whicli tlie contract is made, in 
 
 coivncil may direct ; and if any lascar or otlier person who has bound himself by 
 any sucli contract is, on arriving in any of the said colonies, requii^etl to enter into 
 an agreement to serve as a seaman in any ship bound for the U. K. or to any 
 other part of H. M.'s dominions, and if it is certified by some officer appointed 
 for that purpose by the governor of the said colony that such agreement is a 
 proper agreement in all respects for such lascar or other person to enter into, and 
 is in accordance with the original contract, and that the ship to which such agree- 
 ment relates is a proper ship for sixch lascar or other person to serve in, and is 
 properly supplied ■«'ith provisions, and that there is not in the opinion of such 
 officer any objection to the full performance of tlie said contract, such lascar or 
 other person shall be bound to enter into the said agreement, and to serve as a 
 seaman in the ship to which it relates, and shall thereupon be deemed to be for 
 all purposes one of the crew of the ship ; and if he refuses to enter into such 
 agreement, he shall, notwithstanding such refusal, be liable to the same con- 
 sequences, and be dealt mth in all respects in the same manner, as if he had 
 voluntarily entered into the same ; and for every lascar or other person in 
 respect of whom such certificate is applied for, the person applying for the same 
 shall pay to such officer as aforesaid such fee as the governor of the colony may 
 appoint. 
 Act not to afEcct 545, Xotliing in this Act contained shall be taken to repeal or alter anv of the 
 passenger Acts. p^.Q^^gio^g of ^j^g a Passengers Act, 1852," or of the Act 1 7 Vict. c. 84. 
 Corporations, 546. The municipal cor[5oration of any borough, being a seaport in the U. K., 
 
 *^t""f()"^'^^i™^ and any body corporate, association, or trustees in any such seaport, existing or 
 homes. ' * constituted for any public purposes relating to the government or benefit of 
 persons engaged in the British merchant service, or to the management of docks 
 and harbours, or for any other ]iublic purposes connected with shipping or naviga- 
 tion, may, with the consent of H. !M.''s secretary of state for the home department, 
 appropriate anj" lands vested in them or in trustees for them as a site or sites for a 
 sailors' home or sailors' homes, and may for that purpose either letain and apply 
 the same accordingly, or convey the same to trustees, with such powers for 
 appointing new trustees and continuing the trust as they think fit. 
 Power of 547. The legislative authority of any British possession shall have power, by 
 
 latu'-e^Vo^it' ^^y^ -^^^ ^^' ordinance confirmed by H. JI. in council, to repeal, wholly or in part, 
 provisions of any provisions of this Act relating to ships registered in such possession ; but no 
 Act. such Act or oidinance shall take efiect until such apj^roval has iDeen proclaimed in 
 
 such possession, or until such time thereafter as may be fixed by such Act or 
 ordinance for the purpose. 
 Expenses 54s. All expenses incurred by the commissioners of customs in the conduct of 
 
 commfssiouers suits or prosecutions, or other'\\'ise in carrying into efi'ect the pro^'isions of this 
 of customs to Act, shall be considered as expenses ha^dng reference to the revenue of customs, 
 be paid out of ^^^^^ shall be paid out of the consolidated customs ; but the Board of Trade may, 
 customs. with the consent of the Treasury, repay out of the mercantile marine fimd all or 
 
 any part of such of the expenses so paid as are by the provisions of this Act 
 chargeable on the said fund. 
 
 («) ,Sec 18 & 19 Vict. C. 91, ss. 22, 23, 2}0st.
 
 17 & 18 viOT. c, 104, 
 
 7-55 
 
 SCHEDULE to wIugIi this Act voibr.^. 
 
 FORM A, (See Section 36, ante, p. G42.) 
 
 The following form (which seems to be in lieu of Form A. in tliis sclietUile) was 
 issued by the Board of Trade in 1877. 
 
 Surveys 59.— Issued by the Board of Trade, 1877, 
 
 MERCHANT SHIPPING ACT, 1854. 
 
 Certificate of Survey. 
 
 Name of Miiii. 
 
 Port of intended Registry. 
 
 Official Number, if there lias 
 been any former Registry, 
 
 
 
 
 Wliothcr 
 
 Briiisli or 
 
 Foreign Built. 
 
 Wliether a Sailing or 
 
 . Steam Ship; .ind if 
 
 a Steam Ship, lio^v 
 
 propelled. 
 
 Where Bnilt. 
 
 When Bunt. , ^^^^^f^ 
 
 
 
 
 
 i 
 
 Number of Decks 
 Number of Masts 
 
 Rigged 
 
 Stem 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank 
 
 Depth in hold from tonnage deck to 
 ceiling at midships ... 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 three decks and upwards ... 
 
 Length of engine room (if any) 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Engines (if any). 
 
 No. of 
 Engine?. 
 
 Dcfcription. 
 
 Whether 
 
 British or 
 
 Foreign made. 
 
 When 
 made. 
 
 Name and 
 Address 
 of Makers. 
 
 Diame- 
 ter of 
 Cylin- 
 ders. 
 
 Length 
 
 iif 
 Stroke. 
 
 No. of 
 Horses' 
 Power 
 (com- 
 bined.) 
 
 
 
 • 
 
 
 
 
 
 
 Z c -2
 
 'oQ 
 
 31. S. ACT, 1854, SCHEDULE, 
 
 Certificate of Survey — continued. 
 
 Particulars of Tonnage. 
 
 Gross Tonnage. 
 
 Under Tonnage Deck 
 
 Closed-in sj^aces above tlie 
 Tonnage Deck, if any ; 
 
 Space or spaces between 
 Decks 
 
 Poop 
 
 Forecastle 
 
 Pound House 
 
 Otlier closed-in spaces, if 
 any, as follows : 
 
 Gross Tomiage ... 
 Deductions, as per Contra ... 
 
 Registered Tonnage 
 
 No. of Tons 
 
 Deduction Allowed. 
 
 On account of space required 
 for propelling power 
 
 On account of spaces occu- 
 pied by Seamen or Appren- 
 tices, and appropriated to 
 their use, and kept free 
 from C4oods or Stores of 
 every kind, not being the 
 personal property of the 
 Crew 
 
 These spaces are the follow- 
 ing, xiz. : — 
 
 Cubic Metres, 
 
 Total . 
 
 1, the undersigned having surveyed the above-named ship, hereby 
 
 certify that the above particulars are true, and that her name is marked on each 
 of her bows, and her name and the port of registry are properly marked on a 
 consjiicuous part of her stern, a scale of feet marked on each side of her stem and 
 of her stern post, and lines permanently and conspicuously marked on each side 
 amidships, indicating the position of each deck which is above water, in manner 
 directed by the Merchant Shipping Acts, 1854 to 1876. 
 
 Dated at 
 
 this 
 
 day of 
 
 18 
 
 . Sni-veyor.
 
 17 & 18 viOT. c. 104. 
 
 757 
 
 FORM B. (See Section 38 ; ante, p. 643.) 
 The following next 4 forms have been substituted for Form B. in this schedule. 
 
 Form No. 2. 
 
 Resident or Non-resident ) Natural-born Subject. 
 Owner or 1 ransieree ) 
 
 Declaration of Ownership by Individual. 
 
 OfQcial Number of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of Eegisti-y. 
 
 
 « 
 
 
 No., Date, and Port of previous Registry (if any). 
 
 Whetlier British 
 
 or Foreign 
 
 Built. 
 
 Wliether a Sailing or 
 
 Steam Ship ; and if 
 
 a Steam Ship, how 
 
 propelled. 
 
 Where Built. 
 
 When Built. 
 
 Name and Address 
 of Builders. 
 
 t 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Rigged 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank ... 
 
 Depth in hold from tonnage deck to 
 ceiling at midships 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 three decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Engines (if any). 
 
 No. of 
 Engines. 
 
 Description. 
 
 Whether 
 
 British M 
 
 Foreign 
 
 made. 
 
 When 
 made. 
 
 Name and Address 
 of Makers. 
 
 Dia- 
 meter 
 of Cy- 
 linders. 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Horses' 
 Power 
 (com- 
 bined). 
 
 
 
 
 
 
 
 
 
 * If foreign 
 built, add " and 
 
 her foreign 
 " name is." 
 
 t If British, 
 insert 
 
 "British." 
 " Built at in 
 "the county of 
 " on the 
 "day or 
 "18 " 
 
 If Foreign, 
 insert 
 
 " Foreign." 
 " Built at " 
 
 [iiamiwj the 
 lAace and coun 
 trij] "on the 
 " day of 
 "18 ." 
 
 or, 
 if Foreign, and 
 time and place of 
 build unknown, 
 insert 
 
 " Foreign." 
 " Time and place 
 " of build are 
 " unknown to 
 '■ the declarant."' 
 
 or, 
 if a condemned 
 ship, insert 
 •'Condemned by 
 "the court of" 
 Inamimj the 
 court} " on the 
 " day of
 
 758 
 
 M. S. ACT, 185Ji, SCHEDULE, 
 
 Declaration of Ownership by Individual — continued. 
 Particulars op Tonnage. 
 
 
 No. of Tons. 
 
 
 No. of Tons. 
 
 Gross Tonnage. 
 
 
 Deductions Alloiced. 
 
 
 Under Tonnage Deck 
 
 
 On account of space required f(n" 
 
 
 Closed-in spaces above 
 
 
 propelling power 
 
 
 tlie Tonnage Deck, 
 
 
 On account of sj^aces occupied by 
 
 
 if any 
 
 
 Seamen or Apprentices, and 
 
 
 Space or spaces 
 
 
 appropriated to their use, and 
 
 
 between Decks. 
 
 
 kept free from Goods or Stores 
 
 
 Poop 
 
 
 of every kind, not being the 
 
 
 Forecastle 
 
 
 personal property of the Crew... 
 
 
 Round House ... 
 
 
 These spaces are the following, 
 
 
 Other closed in 
 
 
 viz. : 
 
 
 spaces, if any, 
 
 
 ' 
 
 
 as follows : 
 
 
 
 
 Gross Tonnage ... 
 
 
 
 
 Deductions, as per 
 
 
 
 
 Contra 
 
 Registered Tonnage. 
 
 
 Total Deductions 
 
 
 
 
 I, the undersigned of declare as follows : — I am a natural-born 
 
 British subject, bom at in the county of , and have never taken 
 
 the oath of allegiance to any Foreign State. The above general description of the 
 Rhip is correct , whose certificate of competency or service is No. , 
 
 is the master of the said ship. I am entitled to he registered as owner of 
 shares of the said ship. To the best of my knowledge and belief, no jDerson or 
 body of persons other than snch persons or bodies of persons as are by the 
 Merchant Sliipping Act, 1854, qualified to be OAraers of British ships is entitled, as 
 owner, to any interest whatever, either legal or beneficial, in the said ship. And 
 I make this solemn declaration conscientiously believing the same to be true. 
 
 (a) If ia the 
 presence of a re- 
 gistrar lie will q£ 
 add to bis sig- 
 nature '• Regis- 
 '■trarof thepoit 
 " of 
 
 If in the pre- 
 sence of a magis- 
 trate his descrip- 
 tion should be 
 added, as, for 
 cvample. '• Jus- 
 tice of the 
 peace acting in 
 and for [nam' 
 wci the county, 
 city, borouoli. 
 ttc, as the co^se 
 may 6e]. 
 
 dav ) 
 d^ 
 
 Made and subscribed the 
 
 18 , by the above-named 
 in the presence of ) 
 
 («)
 
 17 & 18 VICT. c. 104. 
 
 769 
 
 Form B. No. 5. 
 Resident or Non-resident 
 
 Natural-l;orn S ubj ects. 
 
 Joint 0^\^^ers or Transferees ( 
 Declaration by Joint Owners ok Transferees attending together. 
 
 Ofllcial Number of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of Registry. 
 
 No., Date, and Port of p 
 
 revious Registry (if any). 
 
 ^ 
 
 Whether British 
 
 or Korcign 
 
 Built. 
 
 Wlicther a Sailing or 
 
 Steam Ship ; and if 
 
 a Steam Ship, how 
 
 propelled. 
 
 .Where Built. 
 
 When Built. 
 
 Name and Address 
 of Builders, 
 
 
 
 
 
 
 
 Feet. 
 
 Tenths. 
 
 Number of Decks 
 Number of Masts. 
 
 Rigged 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank ... 
 
 
 
 Stern 
 
 Build 
 
 Depth in hold from tonnage deck to 
 ceiling at midships 
 
 
 
 Galleries 
 
 Head 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 three decks and upwards 
 
 
 
 Framework 
 
 Length of engine room, if any 
 
 
 
 Particulars of Engines (if any). 
 
 No. of 
 Engines. 
 
 Description. 
 
 Whetlier 
 
 Bvhish or 
 
 Foreign 
 
 made. 
 
 When 
 made. 
 
 Name and Address 
 of Makers. 
 
 Dia- 
 meter 
 of Cy- 
 linders. 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Horses' 
 Power 
 (eom- 
 biuedj. 
 
 ^ If Foreign 
 built, add "and 
 " her Foreign 
 ■' name is ." 
 
 if Foreign, and 
 time and place 
 of build un- 
 known, insert 
 
 "FOREIGX." 
 "Time and place 
 of buUd are un- 
 known to the 
 declarant." 
 
 or, 
 if a condemned 
 ship, insert 
 "Condemned in 
 "the court of" 
 [namma the 
 court} " on the 
 day of ."
 
 760 M. S. ACT, 1854, SCHEDULE, 
 
 Declaration of Joint Owners, &c, — continued. 
 
 Particulars of Tonnage. 
 
 Gross Tonnage. 
 
 No. of Tous. 
 
 Deductions AUov:cd. 
 
 No. of Tons. 
 
 Under Tonnage Deck 
 
 Closed in spaces above 
 
 the Tonnage Deck, 
 
 if any 
 
 Space or spaces 
 between Decks. 
 
 Poop 
 
 Forecastle 
 Bound House ... 
 Other closed-in 
 
 
 On account of space recxuired for 
 propelling power 
 
 On account of spaces occupied by 
 Seamen or Apprentices, and 
 appropriated to their use, and 
 kept free from Goods or Stores 
 of every kind, not being the 
 personal property of the Crew... 
 
 These spaces are the following, 
 viz. : — 
 
 
 spaces, if any, 
 as follo^ys : — 
 
 
 
 
 Gross Tonnage... 
 Deductions, as per 
 Contra ... 
 Eegistered Tonnage 
 
 • 
 
 Total Deductions 
 
 
 
 
 Descriptions of Declarants. 
 
 Names. 
 
 Place of Residence. 
 
 Occupation. 
 
 Place of Biitli. 
 
 
 
 
 
 (a) If in the 
 presence of a 
 registrar he will 
 !»dd to liis sig- 
 nature '• Rcgis- 
 "trarof tbcport 
 " of 
 
 If in the pre- 
 sence of a magis- 
 trate his descrii)- 
 tion should be 
 added, as, for 
 cx.implc, "Jus- 
 '• ticc of the 
 *' peace acting in 
 "and for" [luim' 
 inrj the comitji, 
 city, borouijlt, 
 il-c., as the case 
 may be]. 
 
 First. — Each of us, the several persons above-mentioned, and whose names are 
 hereunto subscribed, declare as follows : — I am a natural-born British subject, my 
 ntmie, description, and place of birth as above given are true. I have never taken 
 the oath of allegiance to any Foreign State. The above general description of the 
 ship is correct, wdiose certificate of competency or service is No. 
 
 is the master of the said ship. 
 
 Secondly. — We, the said several persons above mentioned, respectively declare 
 as follows : — We are entitled to be registered as joint owners of shares in_ 
 
 the said ship. To the best of our knowledge and belief, no jierson or body of" 
 persons other than such persons or bodies of persons as are by the Merchant 
 Shipping Act, 1854, (j^ualitied to be owners of British ships is entitled, as owTier, 
 to any interest whatever, either legal or beneficial, in the said sliip ; and w^e, so far 
 as relates to ourselves and each of us, make this solemn declaration conscientiously 
 believing the same to be true. 
 
 Made and subscribed the day ) 
 
 of IS , by the above > 
 
 named in the presence of ; 
 
 («)
 
 17 & 18 viGT. 0. 104. 
 
 761 
 
 Form B. No. 6. 
 
 '^TmiSr ^"^ \ Natm-al-born Subject. 
 Declaration by a Joint Owner or Transferee. 
 
 Official Number of Ship. 
 
 Name of Ship. 
 
 ■Ko., Date, and Port of Registry. 
 
 
 
 
 
 No., Date, and Port of previous Eegistry (if any). 
 
 
 ■Whether 
 
 British or 
 
 Foreign Built. 
 
 Whether a Sailing or 
 
 Steam Ship ; and if 
 
 a Steam Ship, how 
 
 propelled, 
 
 Where Built. 
 
 When Built. 
 
 Kame and Address of 
 Builders. 
 
 * 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 Rig ge d 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem, 
 under the bowsprit, to the aft side 
 of the head of the stern post 
 
 Main breadth to outside of j)lank ... 
 
 Depth in hold from tonnage deck to 
 ceiling at midships 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 three decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Engines (if any). 
 
 No. of 
 Eugiucs- 
 
 Description. 
 
 AMiether 
 
 British or 
 
 Foreign made. 
 
 Wlieu 
 made. 
 
 Name and Address 
 of Makers. 
 
 Diame- 
 ter of 
 
 Cylin- 
 ders. 
 
 Length 
 
 of 
 Stroke. 
 
 Number 
 of 
 
 Horses' 
 power 
 (com- 
 bined.) 
 
 
 
 
 
 
 
 
 
 ♦ If Foreign 
 built, add ''and 
 " her Foreign 
 ' name is 
 
 If Foreign, 
 and time and 
 place of build 
 unknown, insert 
 
 "Foreign." 
 
 ' Tune and place 
 ' of build arc 
 '• unknown to 
 " the declarant." 
 
 or, 
 if a condemned 
 Ship, iuseit 
 
 '■ Con- 
 " demned by the 
 " court of " 
 [namino the. 
 court] "on the 
 '•day of ."
 
 762 
 
 M. 8. ACT, 1854, SCHEDULE,- 
 
 Dcclaration by a Juint Owner or Transferee — continued. 
 Particulars op Tonnage. 
 
 
 No. of Tons. 
 
 
 No. of Tous, 
 
 Gross Tonnage. 
 
 
 iJcdudions AUov:cd. 
 
 
 Under Tonnage Deck 
 
 
 On account of space required for 
 
 
 Closed-in spaces above 
 
 
 propelling power 
 
 
 the Tonnage Deck, 
 
 
 On account of j spaces occupied by 
 
 
 il any 
 
 
 Seamen or Api^rentices, and 
 
 
 Space or spaces 
 
 
 appropriated to their use, and 
 
 
 between Decks 
 
 
 kept free from Goods or Stores 
 
 
 Poop 
 
 
 of everv Mnd, not being the per- 
 
 
 Forecastle 
 
 
 sonal property of the Crew 
 
 
 Ronnd House ... 
 
 
 
 
 Oilier closed-in 
 
 
 These spaces arc the following, 
 
 
 .spaces, if any. 
 
 
 vaz. : — 
 
 
 as follo-ws : — 
 Gross Tonnage ... 
 
 
 
 
 
 Deductions, as per 
 
 
 
 
 
 
 
 
 Registered Tonnage 
 
 
 Total Deductions 
 
 
 I, the undersigned of declare as follows : — I am a natural-boril 
 
 JBritish subject, born at in the county of and have never taken 
 
 the Oath of Allegiance to any Foreign State. The above general description of 
 the Ship is correct. whose certificate of Competency or Ser\ice is No. 
 
 , is the Master of the said Ship. I am entitled to be registered, as Joint 
 O^nier, vciili the several other persons whose names are hereunder written, of 
 
 shares, in the said Ship. To the best of my knowledge and belief, no 
 person or body of persons other than such persons or bodies of persons as are by 
 the Merchant Shipping Act, 1854, cj^ualified to be Owners of British Ships is 
 entitled, as 0-\raer, to any interest whatever, either legal or beneficial, in the said 
 Ship. 
 
 t If in the 
 pi'esenee of a 
 registrar lie will 
 add to his signa- 
 ture •• Registrar 
 '• of the port 
 
 If iu the prc- 
 i-encc of a 
 magistrate his 
 (lescriptiou 
 should be added, 
 as, for example, 
 " Justice of the 
 " peace acting in 
 '•and for" 
 [naming the 
 connt>i,cit!i, 
 horour/h, <ic,os 
 thecasevia>/bt:]. 
 
 
 Joint Owners with Declarant. 
 
 
 Names. 
 
 Place of Residence. 
 
 Occupation. 
 
 Pl.ice of Birth. 
 
 
 
 
 
 And I make this solemn Declaration conscientiously believing the same 
 true . 
 
 Made and subscribed the day 
 
 of 18 , by the above named 
 
 in the presence of 
 
 t . 
 
 lo be
 
 17 & 18 vioT. c. 101. 
 
 7(5'. 
 
 Steamer. 
 
 Form B, No. 7a. 
 
 Declaration of Ownership. 
 
 Special Cases. 
 
 Official Number of SMp_ 
 
 Bate of Registry 186 
 
 Greneral Description of the Ship. 
 
 Kamc of Sliip. 
 
 British or Foreign built. 
 
 t 
 
 Port of Rcgistrv. 
 
 How propelled. 
 
 Number of Decks 
 Number of Masts 
 
 frigged 
 
 Stem 
 
 Build... 
 Galleries 
 Head ... 
 Framework 
 
 Measurements, 
 Lenglli from the fore part of stem under tlie Bowsprit to the aft 
 side of the bead of the stern post 
 
 Main breadth to outside plank 
 
 Depth in hold from Tonnage Deck to Ceiling at Midships 
 
 Feet. 
 
 Tenths 
 
 Tonnage. 
 
 Tonnage under Tonnage Deck ... ■ 
 
 Closed-in Spaces above the Tonnage Deck, if any ; viz. 
 
 Space or Spaces between Decks 
 
 Poop 
 
 Eound-housc 
 
 Other inclosed Spaces, if any, naming them 
 
 Xo. of Tons. 
 
 Gross Tomiage ... 
 Eeduction for Space rerj^uired for propelling Power 
 
 Length of Engme Koom. 
 
 Number of Engines 
 
 Combined Power (esti-" 
 
 mated Horse-power) 
 
 Number of Horses'- 
 
 power ... 
 
 feet tenths. 
 
 Register Tonnage 
 
 To the best of knowledge and belief, no person or body of persons other 
 
 than such persons or bodies of persons as are by the Merchant Shipping Act, 1854, 
 qualitied to be Owners of British Ships is entitled, as Owner, to any interest 
 whatever, either legal or beneticial, in the said ship. And make this 
 
 solemn Declaration conscientiously believing the same to l^e true. 
 
 Made and subscribed the day of 18 , ? 
 
 by the above named in the presence of ji 
 
 * If Foreign 
 built, add " and 
 " her Foreign 
 " name is .' 
 
 t IfBritish, 
 insert 
 
 "British." 
 " Built at 
 " in the county 
 " of on the 
 
 day of 
 "18 ." 
 
 If Foreign, 
 insert 
 
 "Foreign." 
 '• Built at " 
 [naming the 
 place and 
 co^intrii] " on 
 •' the day of 
 "18 ." 
 
 or, 
 if Foreign, aiul 
 time and place 
 of build un- 
 known, insert 
 
 '• Foreign." 
 " Time and 
 '■place of build 
 "arc unknown 
 "to the de- 
 " clarant." 
 or, 
 if a condemned 
 ship, insert 
 " condemned by 
 " the court of " 
 [naming the 
 court] " on the 
 " day of 18 ." 
 
 To be filled up 
 according to the 
 circumstances of 
 the case, taking 
 care to embody 
 all the requisites 
 of the Act. 
 
 "my" or"om*. 
 "I," or "wc." 
 
 t If in the pre-- 
 senceof a regis- 
 trar he will add 
 to his signature 
 " Registrar to 
 the port of ." 
 
 If in the ]5re- 
 scncc of a magis- 
 trate Ills des- 
 cription should 
 be added, as, for 
 example, " Jus- 
 •• tice of the 
 "peace acting in 
 " and for " 
 [iiaminci the 
 county, city, 
 borough, (H'c, as 
 the cane may 
 he.2
 
 764 
 
 M. S. ACT, 1854, SCHEDtJLE, 
 FORM C. (See Section 39 ; ante, p. 643.) 
 
 The following form lias been made and issued in lieu of Form C. in tliis 
 
 Schedule, 
 Form No. 8. 
 
 Declaration of Ownership on behalf of a Body Corporate. 
 
 If Foreign built, 
 
 add " and her 
 
 " Porciga name 
 
 "is 
 
 If British, insert 
 
 "British." 
 " Built at 
 " in the county 
 " of on 
 
 " the day of 
 
 "18 ." 
 If Foreign, 
 insert 
 
 " Foreign." 
 " Built at " 
 
 Inainitir/ the 
 2Jtace and 
 countrij} '• on 
 " the 
 " day of 
 "18 ." 
 
 or, 
 if Foreign, and 
 time and place 
 of build un- 
 known, insert 
 
 " Foreign." 
 '•■ Time and place 
 " of build are 
 " unknown to 
 "the declarant."' 
 
 or, 
 If a condemned 
 Ship, insert 
 "Condemned by 
 '• the court of ", 
 Inamiii'j the 
 coiirt] '-on the 
 "day of 
 
 Official Number of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of Registiy, 
 
 
 
 
 No., Date, and Port of previous Registry (if any) 
 
 Wliethcr 
 
 British or 
 
 Foreign Built. 
 
 Whether a Sailing or 
 
 Steam Ship ; and if 
 
 a Steam Ship, how 
 
 propelled. 
 
 Where Built. 
 
 When Built. 
 
 Name and Addrcsa of 
 Buildere. 
 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Rigged 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank . . . 
 
 Depth in hold from tomiage deck to 
 ceiling at midships 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 three decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Engines (if any). 
 
 No. of 
 Engines. 
 
 Description. 
 
 Wliotlier 
 
 British or 
 
 Foreign made. 
 
 When 
 made. 
 
 Name and Address 
 of Makers. 
 
 Diame- 
 ter of 
 
 Cylin- 
 ders. 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Hor.ses' 
 power 
 (com- 
 bined). 
 
 
 
 
 
 
 

 
 J7 & 18 vioT. 0. 104. 
 
 765 
 
 Declaration of Partnership, &c. — continued. 
 
 Particulars of Toxnage. 
 
 Gross Tonnage. 
 
 Under Tonnage Deck ... 
 
 Closed-in spaces above 
 
 the Tonnage Deck, if 
 
 any 
 
 Space or spaces be- 
 tween Decks ... 
 Poop 
 
 Forecastle 
 
 Eound House 
 Other closed-in 
 spaces, if any, as 
 follows : — 
 
 Gross Tonnage 
 Deductions, as per Contra 
 Keeistered Tonnage . . . 
 
 No. of 
 Tons. 
 
 • Deductions Alloiocd. 
 
 On account of space rec[uired for pro- 
 pelling power 
 
 On account of spaces occupied by Sea- 
 men or Apprentices, and appro- 
 priated to their use, and kept free 
 from Goods or stores of every kind, 
 not being the personal property of 
 the Crew ... 
 
 These spaces are the following, viz. : — 
 
 No. of 
 Tons. 
 
 Total Deductions 
 
 (a) Here insert 
 such of the de- 
 scriptions as arc 
 apiillcablc. 
 '• An Act of 
 " Parliament of 
 " tlie United 
 " Kingdom " 
 [cite the year of 
 the reign in 
 which the Act 
 was passed, its 
 chapter and 
 title]. " Tlie 
 " said Company 
 " is subject to 
 " the laws of the 
 " , and 
 
 " has its prin- 
 " cipal place of 
 "business at ." 
 
 or, 
 " A Charter 
 " granted by 
 " Her Majesty, 
 " and dated the 
 " day of 18 . 
 " The said Com- 
 " pany is subject 
 " to the laws of 
 " the and 
 
 " has its prin- 
 " cipal place of 
 " busmess at .'' 
 
 or 
 " An Act or 
 " Ordinance of 
 "the Legislature 
 " of 
 [cite the year in 
 
 I, the undersigned in the county of of the Company 
 
 declare as follows : — The said Company was incorporated by virtue of (a) 
 
 The above general description of the Ship is correct. whose Certificate onKna'ic^*^*^' 
 
 of Competency or Service is No. , is Master of the said Ship. The said passed^ m ^''"^ 
 
 Company is entitled to be registered as Owner of shares in the said Sliip. cimpterana- 
 
 To the best of my knowledge and belief, no person or body of persons other than « compLnyls^^'^ 
 such persons or bodies of persons as are by the Merchant Shipping Act, 1854, "subject to the 
 qualified to be Owners of British Ships is entitled, as Owner, to any interest ',i ^'"^^^ of t^'ie 
 whatever, either legal or beneficial, in the said Ship. And I make this solemn « its princii)ai 
 Declaration conscientiouslv believing the same to be true. j' P^fice of busi- 
 
 Made and subscribed the day of ) ''''''"*•, 
 
 18 , by the above-named in the presence > "the Act'; & 8 
 
 „f \ "Vict. c. no, 
 
 ^'- I " from the 
 
 ■ ' " day of 
 
 " being the date 
 " of the certifi- 
 " Gate of com- 
 " plete registra- 
 "tion. The said 
 " Company is 
 " subject to the 
 " laws of the 
 " and has 
 
 " its principal 
 
 " place of busi- 
 "nessat ." 
 
 If in the pre- 
 sence of a regis- 
 trar he will add 
 to his signature 
 " Registrar of 
 " the port of ." 
 If in the pre- 
 sence of a magis- 
 trate his descrip- 
 tion should bo 
 added, as, for 
 example, " Jus- 
 " tice of the 
 " peace acting in 
 ' "and for" 
 
 [naming the 
 county, city, 
 horovgh, dc, as 
 the case may be].
 
 766 
 
 ju. s. ACT, 1854, srnEUULT', 
 
 FORM D. (Bee Section 44.) 
 
 The foUo'wdng form has been substituted for Form D. in this Schedule. 
 
 Form No. 9. 
 
 CERTIFICATE OF BRITISH REGISTRY, 
 Particulars of Ship. 
 
 Official Number 
 of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of ^'?;:SLZif=?'f' "' 
 pp<^Utrv previous Registry 
 ^' ° •'• (if any). 
 
 
 
 
 
 Whether 
 
 British or 
 
 Foi-cigu Built. 
 
 Whether a Sailing or 
 
 Steam Sliip, aiitl if 
 
 a Steam Ship, liow 
 
 propclleil. 
 
 AThcro Built. 
 
 When Built. 
 
 Name and Address 
 of Builders. 
 
 
 
 
 
 
 No. of Decks ... 
 No. of Masts 
 
 Rigged 
 
 Stern 
 
 BuUd 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem under 
 the bowsprit to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank 
 
 Depth in hold from tonnage deck to 
 ceiling at midsliips ... 
 
 Depth in hold from upper deck to 
 ceiling at niidships in the case of ships 
 ol three decks and up^\ards... 
 
 Length of engine room (if any) 
 
 Feet. 
 
 Tenths. 
 
 Particulars op Engines (if any). 
 
 Engi.rJs. Description. 
 
 •\Miethcr 
 
 British or 
 
 Foreign made 
 
 Wlicn 
 made. 
 
 Name and 
 
 Address 
 
 of Makers. 
 
 Diame- 
 ter of 
 Cylin- 
 ders. 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Horses 
 power 
 (com- 
 bined.) 
 
 
 
 
 1 
 
 i 
 
 

 
 17 & 18 VICT. c. 104. 
 
 7^)"! 
 
 Certificiite of British Registry— coufMiifef', 
 
 Particulars of ToxxAra:. 
 
 Gross Tommrjc. 
 
 Under Tonnage Deck ... 
 Closed in spaces above 
 
 the Tonnage Deck (it 
 
 any) 
 
 Space or Spaces between 
 
 Decks 
 
 Poop 
 
 Forecastle 
 
 Round House 
 
 Other closed-in spaces, if 
 
 anj^, as follows : 
 
 In Regis- 
 ter Tons*. 
 
 In Cubic 
 Metres. 
 
 Deductions Allowed. 
 
 On account of space required 
 for propelling power 
 
 On account of spaces occu- 
 pied by Seamen or A'p- 
 prentices, and appropri- 
 ated to their use, and kept 
 free from goods or stores 
 of every kind not being 
 the personal property of 
 the crew. 
 
 These spaces are the follow- 
 ing, Aaz. : — 
 
 Total deductions 
 
 \o. of 
 Tons. 
 
 
 Gross Tonnage 
 Deductions, as per contra 
 
 
 
 Register Tonnage . . . 
 
 
 
 
 I, the undersigned registrar of shipping at the port of , hereby certify 
 
 that the ship, the description of which is prefixed to this my certificate, has been 
 duly surveyed, and that the above description is true ; that whose certi- 
 
 ficate of competency or service is No. is the master of the said ship ; and 
 
 that the name , residence, and description of the owner , and number of 
 sixty-fourth shares held by are as follows : 
 
 Name, Residence, and Occupation of the O^nier. 
 
 X'umber of Sixty-fourth Shares. 
 
 
 
 Dated at. 
 
 the 
 
 day of 
 
 18 
 
 Registrar of Shipping. 
 
 NoTiCK. — "A certificate of registry is not a document of title. It does not 
 necessarily contain notice of all changes of ownership, and in no case does it con- 
 tain an official record of any mortgages aftecting the sliip." 
 
 In case of any change of oivnership it is important for the protection of the 
 interests of all parties that the change should be registered according to law. 
 
 Should the vessel be lost, .sold to foreigners, or be broken up, notice thereof, 
 together with the certificate of registry, if in existence, should immediately be 
 given to the registrar of shipping at the port of registry under a penalty of ^'100 
 for default. 
 
 For fiuiher information apply to the registrar of shipping, at any custom house. 
 
 The following is indorsed on tliis certificate : — 
 
 N.B. — Indorsements of changes of owners and masters must be made as directed 
 by the instructions to registrars, and will foUow here : —
 
 768 
 
 M. S. ACT, 1854, SCIIEDULEj 
 
 
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 770 
 
 M. S. ACT, 1854, SCHEDULE, 
 
 FOE}*! F. (Soo Section 50 ; ante, p. 647.) 
 Declaration of Owxership by Ixdividual Tran'sferree. 
 
 See Form No. 2, ante, p. 757, which it seems is substituted for Form F. in thi? 
 schedule. 
 
 FOEM G. (See Section .56 ; ante, p. 647.) 
 
 Declaration of Ownership ox behalf of a Body Corporate as 
 Traksferree. 
 
 See Form No. 8, ante, p. 764, substituted for Form C, wliicli is applicable 
 to both steam and sailing vessels. 
 
 FOEM H, (See Section 58 ; ante, p. 647.) 
 
 Tlie folloAving next 3 forms have been suljstituted for Form H. in this 
 schedule : — 
 
 Form No. 13, 
 
 Declaration by Eepresentative of a Deceased Owner or Mortgagee 
 taking by transmission. 
 
 If foreign 
 built, add " and 
 •' her foreign 
 " name is ." 
 
 If British, 
 Insert 
 
 " British." 
 " Built at in 
 " the county 
 " of "on 
 
 " the day 
 « of 18 ." 
 
 If foreign, 
 insert 
 
 " FOREIGX." 
 
 '• Built at 
 [naminf/ the 
 place and 
 lountry] "on 
 " the dav 
 '• of 18 ." 
 
 or, 
 If foreign, and 
 time and place 
 of build 
 unknown, insert 
 
 " Foreign." 
 " Time and 
 '■ place of build 
 " ai'e unknown 
 " to the dccla- 
 " rant." 
 
 or, 
 If a condemned 
 ship, insert 
 '■ Condemned by 
 '■ the court oi " 
 {^namiiifi the 
 rourf^i "on the 
 '• dav of 
 
 Official Number of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of Registry. 
 
 
 
 
 No., Date, and Port of previous Eegistry (if any) 
 
 Wliether 
 
 British or 
 
 Foreign Built. 
 
 Whether a Sailing or 
 
 Steam Ship ; and if 
 
 a Steam Ship, how 
 
 propelled. 
 
 Where Built. 
 
 Wlicn Built. 
 
 Name and Address of 
 Builders. 
 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Kigged 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Frame work 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank 
 
 Depth in hold from tonnage deck to 
 ceiling at midships 
 
 Depth in hold from upper deck to ceil- 
 ing at midships, in the case of three 
 decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths.
 
 17 & 18 VICT. c. 104. 
 
 Declaration liy Hepresentativp, &c. — continued. 
 
 771 
 
 Particulars op Engines (if any) 
 
 No. of 
 Engines. 
 
 nos3cription. 
 
 Wliethor 
 
 British or 
 
 Foreign made. 
 
 Wlien 
 made. 
 
 Name and Address of 
 Makers. 
 
 Diame- 
 ter of 
 Cylin- 
 ders. 
 
 Lengtli 
 
 of 
 Stroke. 
 
 Xo. of 
 Horses' 
 Power 
 
 (com- 
 bined.) 
 
 Particulars op Tonnage, 
 
 No. of Tons. 
 
 No. of Tons. 
 
 (a) •'!'• ov 
 •' we." 
 
 (/') Here 
 insert name, 
 description, and 
 place of birth 
 of declarant. 
 
 (c) Here state 
 " I am" or "wc 
 " arc natural 
 " born British 
 " subjects, and 
 ' have never 
 •' taken the 
 " Oath of 
 " Allegiance to 
 " any foreign 
 " state." or 
 " naturalized," 
 &c., as the case 
 may be. 
 
 ((?) Heremsert 
 name of 
 deceased. 
 
 (e) "Owner" 
 or " mort- 
 " gagee." 
 
 (/)'IIere insert 
 " on the day 
 "of having 
 
 " first duly nnido 
 " his will, dated 
 " the day of 
 " , whereby 
 " he appointed 
 " (me or us) 
 " e.xecntor, and 
 " (I or we) 
 " proved his 
 " said will on 
 " the day of 
 " in the 
 " court of ." 
 
 or, 
 " on the day 
 " of hates-" 
 " tate, and that 
 " letters of 
 
 the itnclersigned (h) declare as follows : — (c) (a) " tration of iiis 
 
 declare tliat (d) the person appearing by the Eegister Book to be '' estate and 
 
 the (e) of shares in the Ship above described, died at in •■ the °** ^^^day "^ 
 
 the county of (/) " of duly' 
 
 To the best of my knowledge and belief, no person or body of ]iersons other \[ p'^nted to 
 than such persons or bodies of persons as are by the Merchant Shipping Act, " the court 
 1854, qualified to be Owners of British Ships is entitled, as Owner, to any interest " of 
 whatever, either legal or beneficial, in the said Ship. And (a) make this sence of 'a re'-^Ts- 
 
 solemn Declaration conscientiously believing the same to be true. trar he win add 
 
 to his signature 
 " Registrar of 
 
 Made and subscribed the day of ) ;;/^°p°\!^ 
 
 Gross Tonnage. 
 
 Under Tonnage Deck 
 
 Closed-in spaces above the 
 Tonnage Deck, if any space 
 or spaces between Decks... 
 
 Poop 
 
 Forecastle 
 
 Roundhouse 
 
 Other closed-in spaces, if any, 
 as follows : — 
 
 Gross Tonnage 
 Deductions, as per contra 
 
 Registered Tonnage 
 
 Deductions Allowed. 
 
 On account of space required 
 for propelling power 
 
 On account of spaces occiipied 
 by Seamen or Apprentices, 
 and appropriated to their 
 use, and kept free from 
 Goods or Stores of every 
 kind, not being the ]iev- 
 sonal property of tlie 
 crew. 
 
 These spaces are the follow- 
 
 Total deductions 
 
 («) 
 
 18 , by the above-named 
 sence of 
 
 in the pre- 
 
 3d 2 
 
 If hi the pre- 
 sence of a 
 magistrate his 
 description 
 should be added, 
 as, for example, 
 " Justice of the 
 " peace acting 
 " hi and for" 
 liHDniiiij the 
 roitiiti/, cltii, 
 borough, tic, as 
 the case may 
 be].
 
 772 
 
 M. S. ACT, 1854, SCHEDITLE, 
 
 Form H. No 14. 
 Declabatiox of Ownership or Interest on Transmission dy Bankruptcy. 
 
 If Foreign 
 buiit, acid "and 
 '■ lier Foreign 
 "name is ," 
 
 If British, 
 insert 
 
 " British." 
 "Built at 
 "in the county 
 " of on 
 
 '• the 
 " day of 
 "18 .'■ 
 
 If Foreign, 
 insert 
 
 "FOREICX." 
 
 " Built at 
 [namiiif/ the 
 place and 
 country] " on 
 " the " day of 
 IS." 
 
 or. 
 If Foreign, 
 and time and 
 place of build 
 unknown, 
 insert 
 
 " Foreign." 
 " Time and 
 "place of build 
 '• are unknown 
 " to the de- 
 " clarant." 
 
 or, 
 If a condemned 
 ship, insert 
 " Condemned 
 " by the court 
 " of" liiaminci 
 the court] 
 '• on the 
 "day of 
 
 Official Number of Ship. 
 
 Name of Ship. 
 
 Ko., Date, and Port of PiCgistry. 
 
 
 
 
 No., Date, -and Port of previous Registry (if auy) 
 
 Whether British 
 
 or Foreign 
 
 Built. 
 
 1 
 ^^^lethcr a Sailing or 
 Stoam Ship : and if 
 a Steam Ship, liow ' 
 propelled. 
 
 Where Built. 
 
 Wicn Bull I. 
 
 Name and Addivss 
 of Builders. 
 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Rigged 
 
 Stem 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Lengtb from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stem post 
 
 Main breadth to outside of plank 
 
 Depth in hold from tonnage deck to 
 ceiling at midships ... 
 
 Depth in hold fi'om upper deck to ceil- 
 ing at midships, in the case of three 
 decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Engines (if any) 
 
 No. of 
 
 Engines. 
 
 Description. 
 
 Whether 
 
 British or 
 
 Foreign made. 
 
 ■When 
 made. 
 
 Name and Address 
 of Makers. 
 
 Dia- 
 meter 
 of Cy- 
 linders. 
 
 1 
 No. of 
 Length Horses' 
 of Power 
 Stroke, (com- 
 bined). 
 
 
 
 
 
 
 

 
 17 et 18 VICT. c. 104. 
 Declaration of Owiiership, &,c. — continued. 
 
 Particulars of Tonnage. 
 
 773 
 
 
 No. of Tons. 
 
 
 No. of Tous. 
 
 Gross Tonnage. 
 
 
 Deductions Alloived. 
 
 
 Under Tonnage Deck 
 
 
 On account of space required for 
 
 
 Closed-in spaces obove 
 
 
 propelling power ... 
 
 
 the Tonnage Deck, 
 
 
 On account of spaces occupied by 
 
 
 if am- 
 
 
 Seamen or Apprentices, and 
 
 
 Space or spaces 
 
 
 appropriated to theii' use, and kept 
 
 
 betAveen Decks 
 
 
 free from Goods or Stores of every 
 
 
 Poop 
 
 
 kind, not being the personal pro- 
 
 
 Forecastle 
 
 
 perty of the Crew 
 
 
 Round House ... 
 
 
 These spaces are the follo^\ing, 
 
 
 Other closcd-in 
 
 
 viz. : — 
 
 
 spaces, if any, as 
 
 
 
 
 follows : — 
 
 
 
 
 Gross Tonnage ... 
 
 
 
 
 Deductions, as per 
 
 
 
 
 Contra 
 
 Registered Tonnage 
 
 
 Total Deductions 
 
 
 
 1 
 
 (rt) the undersigned declare as follows : — the person 
 
 appearing by the register book to be the (6) of shares in the ship 
 
 above described b) on the day of one thousand eight 
 
 hundred and (c) appointed (d) of the estate and effects of 
 
 tiae said and (e) entitled to be registered as (/) of the 
 
 said shares of the said ship. And (a) make this solemn declara- 
 
 tion conscientiously believing the same to be true. 
 
 Made and subscribed by the above-named ) 
 in the presence of ] 
 
 (a) " I " or 
 "we." 
 
 (5) "Owner" 
 or " mort- 
 gagee," "did," 
 (ir "was." 
 
 (c) Here state 
 ■uhetber ad- 
 judged bank- 
 rupt, or under 
 luiuidation by 
 arrangement, 
 and who has 
 been appointed. 
 
 (fO" Official" 
 or "creditors," 
 or " official 
 " and creditors 
 " assignee or 
 "trustee in 
 " liquidation." 
 
 (e) •• I am" or 
 " we are." 
 
 (/) "Owner" 
 or •' mon.gagee." 
 
 If in the pre- 
 sence of a 
 registrar he 
 will add to his 
 signature 
 " Registrar 
 " of the port 
 " of .'* 
 
 If in the pre- 
 sence of u magis- 
 trate his de- 
 scription should 
 be added, as, 
 for example, 
 " Justice of 
 " the peace 
 " acting in 
 "and for" 
 [)iainln',i tlin 
 C07int!i, citii, 
 burituijh, <{•[■., 
 as the case 
 may he].
 
 1 
 
 774 
 
 M. S. ACT, 1854, SCHEDULE, 
 
 Fuu.M H. No. IJA. 
 
 SteaiiR'i-. 
 
 Declaration ox Transmission by Marriage. 
 
 * If Foreign 
 built, add " and 
 ' lior Foreign 
 "name is 
 
 t If Britisli, 
 insert 
 
 •■Britisu.'' 
 " Built at 
 *• iu tlie county 
 '• of on 
 
 " the day 
 
 "of IS ."' 
 
 If Foreign, 
 insert 
 
 "FOUKIGX." 
 " Built at " 
 [naininn the 
 2)lace avii. 
 countrij] " on 
 •' the (lay 
 
 "of 18 ." 
 
 or, 
 if Foreign, 
 and time and 
 place of build 
 unknown, 
 insert 
 
 ••FOREIGX." 
 
 " Time and 
 "place of build 
 " are uiiknown 
 
 to tlie 
 " declarant." 
 
 or, 
 if a condemned 
 fihip insert 
 " Condemned 
 '• by tlie court 
 '■of" [ncnniiig 
 the court} "on 
 *■ the day 
 " of 
 
 Official Number oi" Ship • 
 
 Date of Registry 
 
 18.3- 
 
 (icneral Description of Ship. 
 
 Xanic of Ship. 
 
 Purl of Registry. 
 
 Britisli or Foreign built. 
 
 IIow propelled. 
 
 Xiimber of Decks 
 
 Number of Masts 
 
 Rigged 
 
 Stern 
 
 Build... 
 Galleries 
 Head... 
 Frame^vurk 
 
 Measurements. 
 
 Length from the fore part of Stem imder the Bowsprit to the \ 
 aft side of the head of the stern post ... ... ... ... j 
 
 Main breadth to outside plank ... ... 
 
 Depth in hold from Tonnage Deck to Ceiling at Midships . . . 
 
 Feet. 
 
 Tcutlis 
 
 Tonnage. 
 
 Tonnage imder Tonnage Deck 
 
 Closed-in Spaces above the Toimage Deck, if any ; viz. : 
 
 Space or Spaces between Decks 
 
 Poop 
 
 Round-house 
 
 Other inclosed Spaces, if any, naming them 
 
 No. of Tons. 
 
 Gross Tonnage . . . 
 Rediiclioii fur Space required for propelling. 
 
 Length of Engine Room,., 
 Numlier of Engines 
 Combined Power (esti- 
 mated Horse-power) 
 Number of Horses- 
 iwwer... 
 
 feet. tenths. 
 
 Register Tonnage 
 
 I, the undersigned of in the county ot declare as 
 
 follows: — I am a natural-born subject of Her Majesty,' born at in the
 
 17 & 18 VICT. c. 101. 
 
 775 
 
 couuty of , and have never taken the oath of allegiance to any Foreign 
 
 State. I declare that on the day of one thousand eight hundred 
 
 and I intermarried with, and am now the husband of , the person 
 
 appearing on the register book to he the owner of shares in the said ship, 
 
 and I declare that on such marriage the interest of the said became by 
 
 laAV vested in me, and that I am entitled to be registered as owner of the said shares 
 in place of the said . To the best of my knowledge and belief, no person 
 
 or body of persons other than such persons or bodies of persons as are by the 
 Merchant Shipping Act, 1854, qualified to be owners of British ships is entitled, as 
 owner, to any interest Avhatever, either legal or beneficial, in the said ship. And 
 I make this solemn declaration conscientiously believing the same to be true. 
 
 Made and subscribed the day 
 
 of 18 , by the above-named 
 
 in the presence of 
 
 If in the in-c- 
 seace of a regis- 
 trar ho will 
 add to his 
 sisuature 
 " Registrar 
 " of the port 
 "of 
 
 If in the 
 presence of 
 a magistrate 
 his description 
 should be 
 added, as, for 
 example, 
 " Justice of 
 " the peace 
 " acting in and 
 "for" [namiii'j 
 the county, 
 clti/, hurougli, 
 <C'c.. as the case 
 may hcj.
 
 776 
 
 M. S. ACT, 1854, SCHEDULE, 
 
 o 
 
 s « 
 
 Ph 
 
 "5 "^ 
 
 J. 
 
 
 
 
 o 
 
 p-l 
 
 o 
 
 a 
 
 
 C5 
 
 
 t) 
 
 2 w 
 
 O 
 O 
 
 o 
 
 O 
 
 s 
 
 
 1 
 
 Where Built. 1 When Buill. 
 
 Tenths. 
 
 Si 
 
 II? 
 
 c Is 
 c .- 
 
 
 !5 
 
 
 
 
 1* 
 
 
 
 
 Oil account of Space required for Propelling Power ... 
 
 On account of Spaces occupied by Seamen or Ap- 
 prentices, ap])ropriated to their use, and kept free 
 from Goods and Stores of every kind not lieing the 
 personal property of the Crew. These Spaces are 
 the following, viz. : 
 
 - 
 
 a; 
 
 o 
 
 3 
 
 o 
 
 c ^ 
 
 £3 
 
 si? 
 
 
 Length from foreitart of Stem, under the bow.sprit, \ 
 to the aft side of the Head of the Sternpost ... j' 
 
 Mainbreadth to outside of Plank 
 
 Depth in Hold from Tonnage Deck to Ceiling at ^ 
 Midshi])s ... ... ... ... ... ... S 
 
 Depth ill Hold from Upper Deck to Ceiling at Mid- ) 
 shii)s in the case of Three Decks and upwards... \ 
 
 Length of Engine Room, if any 
 
 1 
 
 
 ^ 
 
 o 
 
 1 
 
 1 
 
 C 
 
 
 
 
 .1 
 
 s 
 
 '5) 
 3 
 
 o 
 d 
 
 
 
 p-t 
 
 
 p; o K Ph 
 
 
 
 1 
 
 i 
 6 
 
 
 
 
 '7^ 
 
 ' 
 
 * 
 
 * r-"* ■ ' * I * 
 
 
 
 Under Tonnage Deck 
 
 Closed in Spaces above Tonnage Deck, if ai 
 or Spaces between Deck 
 
 I'oop 
 
 Forecastle ... 
 Pound-house 
 Other closed-in Spaces, if any, as follows. 
 
 SO 
 
 o -^ 
 
 a: ""* 
 
 m M 
 C <A 
 St, a; 
 
 CC 
 
 C 
 
 9 
 3 
 
 d to 
 
 
 "7. 
 
 c— 
 
 O 
 
 1 
 
 5 
 
 CO 
 
 o 
 to 
 
 S 
 P^ 
 
 o 
 
 iO 
 
 o 
 
 Number of Decks ... 
 Number of Masts ... 
 
 Stern 
 
 'o 
 
 o 
 
 
 If 
 2o
 
 17 & 18 vioT. c. 10-4. 
 
 777 
 
 iS 
 
 
 5 ?^ 
 
 O 
 
 'C — 1 
 
 C .^ 
 
 p 
 
 cS . 
 
 
 
 
 
 
 
 
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 rt' 
 
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 'o.rt 
 
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 g ?J >-3 ST " — ' . s -13 
 
 ii 9 ^,3 ^ o: ^ 
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 M. S. ACT, 1854, SCHEDULE, 
 
 63 
 
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 780 
 
 M. S. ACT, 1854, SCHEDULE, 
 
 I 
 
 FORM L. (See Section 74 ; ante, p. 649.) 
 
 Declaration by Mortgagee taking by Transmission. 
 
 See Form No. 13, ante, p. 770, substituted for Form H. iii Schedule. 
 
 FORM M. (See Section 79 ; ante, p. 650.) 
 
 The folloAving form has been substituted for Form M. in this Schedule, 
 
 « 
 
 CERTIFICATE OF MORTGAGE. 
 
 Form No. 16. 
 
 
 Official Number of Sliip. 
 
 Name of Ship. 
 
 No., Date, and Port of Registry. 
 
 
 
 
 
 
 Number, Date, and Port of previous Registry (if any). 
 
 A-.C.-Tliesc 
 particulars to be 
 filletl up from 
 llieCertiticatc 
 of the Ship's 
 
 "Whether 
 
 British or 
 
 Foreign Built. 
 
 ■Whether a Sailing or 
 
 Steam Ship ; aiul if 
 
 a Steam Ship, how 
 
 propelled. 
 
 1 
 Wlierc Built. 1 When Built. 
 
 1 
 
 Name and Address of 
 Builders. 
 
 llegistry. 
 
 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Rigged 
 
 Stem 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Leugtli from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post • 
 
 Main breadth to otttsidc of plank ... 
 
 Depth in hold from tomiage deck to 
 ceiling at midships 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 three decks and upwards ... 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 
 Particulars of Engines (if any). 
 
 
 No. of 
 Engines. 
 
 Description. 
 
 Whether 
 
 British or 
 
 Foreign made. 
 
 When 
 made. 
 
 Name and Address 
 of Makers. 
 
 Dia- 
 meter 
 of Cy- 
 linders 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Horses' 
 Power 
 (com- 
 bined). 
 
 
 
 
 
 
 
 
 
 1
 
 17 & 18 VICT. c. 104. 
 
 781 
 
 Certificate of IMortgage — continued. 
 
 Particulars op Toxxage. 
 
 Oross Tonnage. 
 
 Under Tonnage Deck 
 
 Closed in spaces above the 
 
 Tonnage Deck, if any 
 Space or spaces between Decks 
 
 Poop 
 
 Forecastle 
 
 Round House 
 
 Other closed-in spaces, if any, 
 
 as follows : 
 
 Gross Tonnage 
 Dediictions, as per Contra 
 
 Eegistered Tonnage . . . 
 
 No. of 
 Tons. 
 
 Deductions Allowed. 
 
 On account of space required 
 for propelling power 
 
 On account of spaces occupied 
 by Seamen or Apprentices, 
 and appropriated to tlieir use, 
 and kejrt free from Goods or 
 Stores of every kind, not 
 being the personal proj)erty 
 of the Crew 
 
 These spaces are the following, 
 viz. : — 
 
 Total Deductions 
 
 No. of 
 
 Tons. 
 
 Account of Title op Owners. 
 
 Names of Owners. 
 
 Number of Sixty-fourth Shares 
 held by each. 
 
 Existing Mortgages or Certificates of 
 
 Mortgage on the same Ship, or Shares 
 
 incUided in tliis Certificate. 
 
 
 
 * 
 
 * Every par- 
 ticular should be 
 fully stated. 
 
 (rt) the undersigned, being, as above stated. Owner of 
 
 shares in the Ship above descril)ed, as stated in the foregoing account of title, 
 hereby appoint (b) attorney in (6) name and on 
 
 (6) behalf to mortgage the said shares, and to execute and do all such 
 
 deeds, matters, and things as may l)e necessary f(jr carrying into effect the power 
 hereby given. {a) declare that the amotmt (jf money to be raised by 
 
 mortgage under tliis power .shall not exceed and that the rate of interest 
 
 at whieli the same is raised shall not exceed for every one hundred 
 
 pounds by the year, {a) declare that the power of mortgaging hereby 
 
 given may be exercised at _ . (a) declare that the above power 
 
 shall not l^e exercised after the expiration of months from the date hereoi'. 
 
 In witness whereof («) have hereunto subscribed (6) name 
 
 and affixed (Jj) seal this day of 
 
 I , Registrar of hereby certify that the above written 
 
 particulars relating to the Ship and the title thereto are correct ; and I further 
 certify that the said Owner ha duly sul^scribed and affixed {c) 
 
 signatiue and seal as appears above. 
 
 Registrar. 
 
 The following is the indorsement on this form : — 
 
 The within-mentioned Sliares in the Ship were tliis day mort^a'^ed 
 
 to to secure . Dated at this day of 
 
 one thousand eight hundred and 
 
 (rt) "I" or 
 "we." 
 
 (6) "My" or 
 " our." 
 
 (c) "His" or 
 "tliplr." 
 
 (^0 
 
 of (c) 
 
 {(I) "Registrar" 
 or " consular 
 officer," as the 
 
 Xota ii*:/;». -"Persons who purchase under a certilicatc of sale or who ;i(lvance money under a 
 eertilicate of innrrsacre, when thor.' i> a previous mort erase or a previous certificate of tale or of niort- '"^''^ may be, 
 sasi' ciiilor-cd on ilie certificate under which they ))urcliase, do so at their own risk. '"^ t.^o..,,.,>, 
 
 •• 'i'licir litif is liable lo be di'fcated by the persons claiming under the incumbrance so endorsed 
 
 ((■) State port or 
 1 ace.
 
 782 
 
 M. P. ACT. 1854, SCHEDULE, 
 
 FORM X. (See Section 79 ; ante, p. 650.) 
 
 Tliese parti- 
 cnlars to be 
 filled up from 
 the Certificate 
 of the Ship's 
 Registry. 
 
 The following form is substituted for Form N. in this schedule. 
 
 Form No. 17. 
 Certificate of Sale. 
 
 OfBcial Kumber of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of Registry. 
 
 
 • 
 
 
 Xo., Date, and Port of previous Registry- (if any). 
 
 WliPther British 
 
 vr Foroian 
 
 Btiilt. 
 
 Whether a Sailing fa- 
 Steam Shi]) ; and if 
 a Steam Ship, how 
 propelled. 
 
 AATicrc Built. 
 
 Wlicn Built. 
 
 Name and Address 
 of Builders. 
 
 
 
 
 
 
 Number of Decks 
 Number of blasts 
 
 Rigged 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Lengtli from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern j)ost 
 
 Main breadth to outside of jilank 
 
 Depth in hold from tonnage deck to 
 ceiling at midships 
 
 Depth in hold from upper deck to 
 ceiling at midships, in the case of 
 tliree decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Enuines (if any.) 
 
 No. of 
 Engines. 
 
 Description. 
 
 Whether 
 
 British or 
 
 Foreign made. 
 
 When 
 made. 
 
 l^aiiie and Address 
 of Makers. 
 
 Dia- 
 meter 
 of Cy- 
 linders. 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Horses' 
 Power 
 (com- 
 bined). 
 
 
 1 
 
 
 

 
 17 & 18 viOT. c. 104. 
 
 783 
 
 Cortificate of Sale — continued. 
 
 Particularh of Tonnaue. 
 
 Gross Tonnage. 
 
 Under Tonnage Deck 
 
 Closed-in spaces above 
 
 the Tonnage Deck, 
 
 it' any 
 
 Sj)ace or spaces 
 between Decks 
 
 Poop 
 
 Forecastle 
 Round House ... 
 Other closed-in 
 spaces, if any, as 
 follows : — 
 
 Gross Tonnage ... 
 Deductions, as per 
 
 Contra 
 
 Reuistered Tonnage 
 
 Xo. of Ton-;.' 
 
 Deductions Alloioed. 
 
 On account of sjiace required for 
 propelling poAver 
 
 On account of spaces occupied by 
 Seamen or Apprentices, and 
 appropriated to their use, and kept 
 free from Goods or Stores of 
 every kind, not being the per- 
 sonal property of the Crew 
 
 These spaces are the following, 
 
 No. of Tons, 
 
 Total Deductions 
 
 Account op Title to the above-mentioned Ship. 
 
 Xame of Owners. 
 
 No. of Shares held by each. 
 
 Account of Mortgages or Certificates 
 
 of Mortgage granted in respect 
 
 of Ship. 
 
 • Every par- 
 ticular should 
 be fully stated. 
 
 (a) the undersigned, being owner of the shiji above described, as 
 
 stated in the foregoing account of title, hereby appoint (h) (o)'-I"or 
 
 attorney in (&) name and on (6) behalf to sell the "we." 
 
 above ship, and to execute and do all such deeds, matters, and things as may be a ^^^y"^^" °^' 
 necessary for carrying into effect the power hereby given. («) declare (c)" state the 
 
 that the ship shall not be sold for a less sum than {a) declare that P°'''' <^i" pl"ce. 
 
 the ship may be sold at (c) . («) declare that the above power 
 
 shall not l)e exercised after the expiration of months from the date hereof. 
 
 In witness whereof («) have hereunto subscril^ed (h) name 
 
 and affixed (Ji) seal this day of one thousand eight 
 
 hundred and 
 
 I , registrar of the port of , hereby certify that the above- /^^^ ^j^j^.g 
 
 written particulars relating to the ship (ij) and to the title of the above- naine.'" '^' 
 
 mentioned owner are correct ; and I further certify that the said owner (<■) " His" or 
 
 lia duly subscribed and affixed (e) signature and seal as above 
 
 appears. 
 
 Registrar. 
 
 " their." 
 
 yotit Bene.—" Persons who jiurchase under a certificate of sale or who advance money under a cer- 
 tificate of mortgage, -nhen there is a previous mortgage or a previous certificate of sale or of mort- 
 gage endorsed on the certificate under wliich tliey purchase, do so at their own risk. 
 
 " Tlicir title is liable to be defeated by the persons claiming under the incumbrance so endorsed."
 
 784 
 
 M. S. ACT, 1854, SCKEDULEj 
 
 FOKM 0. (See Section 83 : ante, p. 652.) 
 
 The following form is substituted for Form 0. in tliis Schedule, 
 form No. 18. 
 
 Revocation of Certificate of Mortgage or Sale. 
 
 Tliese particu- 
 lars to be filled 
 lip from the 
 certificate of the 
 .chip's registrj-. 
 
 Official Number of Ship. 
 
 Name of Ship. 
 
 No , Date, and Port of Registry. 
 
 
 
 
 Xo., Date, and Port of previous Registry (if any) 
 
 AMietho)- 
 
 British or 
 
 Foreign Built. 
 
 Whether a Sailing or ' 
 Steam Ship ; and if j 
 a Steam Ship, how . 
 propelled. 
 
 Where Built. 
 
 ■union Built. 
 
 Name and Address of 
 Builders. 
 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Riggi^tl 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank 
 
 Depth in liold from tonnage deck to 
 ceiling at midships ... 
 
 Depth in hold from upper deck to ceil- 
 ing at midships, in t le case of three 
 decks and upwards 
 
 Length of engine room, if any 
 
 Feet. 
 
 Tenths. 
 
 Particulars of Engines (if any). 
 
 1 
 E^ng-iSes Description. 
 
 "Wliether 
 
 British or 
 
 Foreign made. 
 
 When 
 made. 
 
 Name and Address of 
 Makei-s. 
 
 Diame- 
 ter of 
 
 Cylin- 
 dei-s. 
 
 Length 
 
 of 
 Sti-oke. 
 
 No. of 
 Horses' 
 Power 
 (com- 
 bined). 
 
 
 
 
 1 
 
 
 

 
 17 & 18 VICT. c. 104. 
 
 Revocation of Certificate, '&c. — rontinved. 
 
 Particulars of Tonnage. 
 
 785 
 
 Gross Tonnage. 
 
 No. of Tons. 
 
 Deductions Allowed. 
 
 No. of Tons. 
 
 Under Tonnage Deck 
 
 
 On account of space required 
 
 
 Closed-in spaces above the 
 
 
 for propelling power 
 
 
 Tonnage Deck, if any ... 
 
 
 On account of spaces occu- 
 
 
 Space or spaces between 
 
 
 pied by Seamen or Appren- 
 
 
 Decks 
 
 
 tices, and appropriated to 
 
 
 Poop 
 
 
 their use, and kept free 
 
 
 Forecastle 
 
 
 from Goods or Stores of 
 
 
 Round House 
 
 
 every kind, not being the 
 
 
 Other closed-in spaces, if 
 
 
 personal property of the 
 
 
 any, as follows : — 
 
 
 crew 
 
 These spaces are the follow- 
 
 
 Gross Tonnage 
 
 
 ing, viz. :— 
 
 
 
 Deductions, as per Contra . . . 
 Registered Tonnage 
 
 
 Total Deductions 
 
 
 
 
 {a) of being owner of shares in the ship above de- ^ (n)_"l" or 
 
 scribed, hereby revoke the power of (6) the said shares given by (c) Y^j "Mort- 
 
 to by a certificate of (rf) dated the day of one gaging" or 
 
 thousand eight hundred and 
 
 In witness whereof (a) 
 and affixed (e) seal 
 
 hundred and 
 
 elling." 
 
 have hereunto subscribed (e) name " „g." 
 
 this day of one thousand eight (<?) " Mort- 
 
 gage'' or " sale.' 
 (e) "My" or 
 
 I, , registrar of hereby certify 
 
 that the said (/) ha executed I 
 
 this power of revocation in manner above 
 appearing. 
 
 " our." 
 
 if) "OwTier" 
 or " mortgagee.' 
 
 Registrar of 
 
 3 E
 
 78G 
 
 jr. :?. ACT, 1851'j SCUEDULE, 
 
 TABLE P. (Sec Section 125 ; ante, p. 661.) 
 
 Feks to r,T. Charged for Matters 
 
 1. EXGAOEMENT OF CrEWS. 
 
 I'RANSAC TED AT ShIPI'ING OFFICES (((). 
 
 3. Discharge of Crews. 
 
 Ill sli 
 
 |iS Uinli-l' 
 
 60 to 
 100 to 
 200 to 
 300 to 
 400 to 
 500 to 
 600 to 
 700 10 
 800 to 
 900 to 1000 
 Above 1000 
 
 £ 
 60 tons 
 
 ,1 
 
 100 
 200 
 300 
 400 
 500 
 600 
 700 
 800 
 900 
 
 
 
 4 
 
 
 
 In ships under 60 tons 
 
 
 
 7 
 
 
 
 60 to 
 
 100 „ 
 
 
 
 15 
 
 
 100 to 
 
 200 ., 
 
 1 
 
 
 
 
 200 to 
 
 300 „ 
 
 1 
 
 5 
 
 
 300 to 
 
 400 „ 
 
 1 
 
 10 
 
 
 400 to 
 
 500 „ 
 
 1 
 
 15 
 
 
 500 to 
 
 600 ., 
 
 •) 
 
 
 
 
 600 to 
 
 700 „ 
 
 •> 
 
 5 
 
 
 700 to 
 
 800 .. 
 
 •) 
 
 10 
 
 
 800 to 
 
 900 „ 
 
 •.) 
 
 15 
 
 
 900 to 
 
 1000 „ 
 
 :; 
 
 
 
 
 Above 
 
 1000 „ 
 
 And so on for sliip.^ oi l;irLi,er tonnaji,e, 
 aildiiiij; for every 100 tons above 
 1000, five sliillingp. 
 
 2. EXGAGEMEKT OF SeAMEX 
 SEPARATE LY. 
 
 Two sliillinus fur each. 
 
 £ 
 
 .*. 
 
 J. 
 
 
 
 4 
 
 
 
 
 
 t 
 
 
 
 
 
 15 
 
 
 
 1 
 
 
 
 
 
 1 
 
 5 
 
 
 
 1 
 
 10 
 
 
 
 1 
 
 15 
 
 
 
 2 
 
 
 
 
 
 2 
 
 5 
 
 
 
 2 
 
 10 
 
 () 
 
 2 
 
 15 
 
 
 
 3 
 
 
 
 
 
 And so on for ships <)f larger tonnage, 
 adding for every 100 tons above 
 lOOO/tive sliillings. 
 
 4. Discharge of Seamen 
 separately. 
 
 Two sliillinijs for each. 
 
 TABLE Q. (See Section 126.) 
 
 Sums to be Deducted from "Wages by way of partial Eepaymext of 
 Fees ix Table P. 
 
 1. In respect of engagements and dis- 
 charges of crews, upon each engage- 
 ment and each discharge, 
 From wages of any mate, pnirser, a. d. 
 engineer, surgeon, car- 
 penter, or ste\\-ard ... 1 6 
 „ all others except appren- 
 tices 1 
 
 In respect of engagements and dis- 
 charges of seamen separately, upon 
 each engagement and each dis- 
 charge, 
 
 One shilling. 
 
 TABLE B. (See Section 133.) (/<} 
 Fees to be charged ox Examixatioxs. 
 
 For a certificate as master 
 For a cei'tilicate as mate 
 
 i-2 
 1 
 
 (»0 Now nicrcaiitilo inaiinc officp-. sce25 i; 2<; 
 Vict. c. 63, s. 10, 
 
 (h) See 25 i: 2t> Vict. c. 63, s. 7, yioft.
 
 17 & 18 VICT. c. 104. 
 
 '87 
 
 TABLE S. (See Section 292 ; <rnti', ]\ 702.) (<■) 
 
 NuilEER -VXD DiMKNsIOXS OF BOATS WITH WniC/I Si: V-nOIXc SlTIPS ARR TO RE PROVIDED. 
 
 
 
 COLUiXN 1. 
 
 COLUMX 2. 
 
 COLrMX .3. 
 
 
 
 
 
 To be carried 
 
 
 Total 
 
 llEOISTF.llEn TON- 
 
 
 b3- Sailing Ships 
 
 
 
 XA 
 
 IE. 
 
 To bo 
 
 and 
 
 To be carried by Steam Ships 
 
 
 
 
 carriuil bv sailincr Ships aiul 
 
 by Steaui Ships. 
 
 which do not airry the 
 
 OF Boats. 
 
 
 
 Steam Sliips. 
 
 when thev do 
 
 Boat iu Col. 2. 
 
 
 
 
 not oavrv tlie 
 
 
 
 
 
 
 Boats iu Col. 3. 
 
 
 
 ,S;.iliuij 
 
 Steam 
 
 Boats. 
 
 K^wl.^. 
 
 Laimchc-. 
 
 Boat<. 
 
 Life Boats. 
 
 2 
 
 Steam 
 
 
 
 _: 
 
 
 .. 
 
 
 ^ 
 
 
 ^ 
 
 
 
 
 :J 
 
 
 ^ 
 
 
 
 
 
 
 X 
 
 Ship?. 
 
 Sliips. 
 
 .c 
 
 s 
 
 ;;; 
 
 A 
 
 5 
 
 " 
 
 ;;; 
 
 ^ 
 
 2. 
 
 ~ 
 
 ^ 
 
 A 
 
 o 
 
 ~ 
 
 ^ 
 
 „• 
 
 ^ 
 
 — 
 
 ;i^ 
 
 _• 
 
 ;c 
 
 Ships. 
 
 
 
 g 
 
 
 3 
 
 ■^j 
 
 H 
 
 
 
 "2^ 
 
 ii 
 
 
 g 
 
 2. 
 
 i: 
 
 
 o 
 
 ■£. 
 
 = 
 
 :i- 
 
 g 
 
 i; 
 
 ■- 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 12; 
 
 Ft 
 
 pq 
 
 P 
 
 lii 
 
 Ft 
 
 Ft.Tn 
 
 P 
 Ft.In 
 
 'A 
 
 Ft 
 
 P3 
 
 P 
 
 A 
 
 -1 
 Ft 
 
 P5 
 Ft.Iu 
 
 C 
 
 'A 
 
 - 
 
 a; 
 
 P 
 
 ■r. 
 
 
 Toiw. 
 
 Tons. 
 
 Ftln 
 
 Ft.In 
 
 Ft.In 
 
 Ft.In 
 
 
 Ft.In 
 
 Ft 
 
 Ftln 
 
 Ftln 
 
 
 
 
 1000 and 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 iil)\variis. 
 
 
 18 
 
 5 
 
 i 3 
 
 2 
 
 24 
 
 5 6 
 
 2 G 
 
 
 27 
 
 8 G 
 
 3 8 
 
 2 
 
 22 
 
 5 G 
 
 2 G 
 
 2 
 
 28 
 
 8 6 
 
 3 G 
 
 
 ' ^ 
 
 
 KdO to 1000 
 
 
 18 
 
 .-, 6 
 
 2 3 
 
 2 
 
 2G 
 
 C C 
 
 a 8 
 
 
 2G 
 
 8 
 
 3 8 
 
 2 
 
 22 
 
 5 (i 
 
 2 G 
 
 
 
 
 
 
 4 or 5 
 
 
 soa ana 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 o 
 
 iipwai'fU. 
 
 .-.00(0 800 
 
 
 18 
 
 5 6 
 
 
 2 
 
 24 
 
 5 t; 2 G 
 
 
 2t; 
 
 s 
 
 3 8 
 
 - 
 
 22 
 
 .-, G 
 
 2 C 
 
 
 
 
 
 4 
 
 4 or ■) 
 
 t-> 
 
 COO to 800 
 
 360 to 500 
 
 
 16 
 
 _ 
 G 
 
 2 3 
 
 2 
 
 24 
 
 :> 
 
 •2 C 
 
 
 23 
 
 7 
 
 3 C 
 
 2 
 
 22 
 
 -. C 
 
 3 C 
 
 
 
 
 
 4 
 
 4 or 5 
 
 ! 
 
 400 to 600 
 
 2401O.3G0 
 
 
 IG 
 
 h 6 
 
 2 3 
 
 1 
 
 22 
 
 .5 6 
 
 2 .-, 
 
 1 22 
 
 li 6 
 
 3 3 
 
 2 
 
 22 
 
 .5 G 
 
 2 C 
 
 
 
 
 
 3 
 
 3 or 4 
 
 1 
 
 200 to 100 
 
 120 to 240 
 
 
 14 
 
 5 
 
 2 2 
 
 
 ■■ 
 
 
 
 1 20 
 
 G 
 
 3 
 
 2 
 
 .'2 
 
 5 6 
 
 2 6 
 
 
 
 
 
 2 
 
 2 or 3 
 
 o 
 
 100 to 2011 
 
 Uolo 120 
 
 
 14 
 
 5 
 
 2 2 
 
 
 
 ■■ 
 
 
 
 IG 
 
 .5 G 
 
 2 
 
 •2 
 
 18 
 
 .5 G 
 
 2 4 
 
 .. 
 
 
 
 
 2 -^iorS 
 
 rt 
 
 UiidPi-lOO 
 
 FiKliTCo! 1 
 
 14 
 
 r> 
 
 
 ■■ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 I 'i 
 
 
 Note. — In sailing ships carrying the nuniher of Ijoats above specified, ami steam ships 
 cariying the larger of tlie two numbers al>ove specified, the l)oats are to be considered snfficient. 
 if their aggregate cubic contents are eijual t(i tlic aggregate cubic contents of the Imats specified. 
 
 In steam .ships carrying tlie smaller of the two iiuiiii)ers ab(ni' sjjecified, one of tlie boats must 
 be a launch of the capacity specified in col. 2. 
 
 In sailing shii>s ot 200 tons burden and under, not carrying passengers, a dingy may be 
 substituted for the boat iu col. 1. 
 
 In sailing ships of LjO tons burden and under, not carrying passenger.s, a substantial boat of 
 capacity sutficient to carry the crew may be substituted ibr those above specified. 
 
 In all steam .ship,s, two paddle-box boats mav be substituted for anv twu of the boats iu 
 col. 3. 
 
 TABLE T. (See Section :31 1.) 
 Fees to he charged for the Scrvey of Passexher Steamer,^. 
 
 For .steamers not exceeding 100 tons 
 For steamers exceeiling 100 and not exceeding 30i) tons 
 For steamers exceeding 300 and not exceeding 600 tons 
 And for everv additional 300 tons an additional 
 
 (e) See 36 & 37 Vict. c. 8.^ s. IC. po.tf, 
 
 3e2 
 
 £ 
 
 .^. 
 
 (I 
 
 .) 
 
 (» 
 
 
 
 ... 3 
 
 
 
 
 
 ... 4 
 
 (» 
 
 
 
 ... 1 
 
 
 
 u
 
 M. S. ACT, 1854, SCHEDULE, 
 
 TABLE U. (See Section 333, sub-sect. 5 ; ante, p. 709.) (a) 
 Rates of Pilotage to be demanded and received by Qualified 
 
 OUTWARDS. 
 
 From 
 
 To 
 
 The Sea, Or- 
 forduess, tlie 
 Downs, / 
 
 Hoseley Bay,\ 
 and vice versd 
 
 The Nore or 
 Warps, and 
 vice versd 
 
 Gravesend 
 Reach, and ( 
 
 Long Reach, 
 and vice versa 
 
 Woolwich or 
 Bh^ckwaU, 
 and vice versd 
 
 Nore Warps 
 
 Gravesend, Chatham, 
 Standgate Creek or 
 Blackstakes 
 
 Long Reach ... 
 
 Woolwich or Blackwall 
 
 Moorings or London Docks 
 
 Gravesend, Standgate \ 
 
 Creek, or Blackstakes j 
 
 Long Reach or Chatham ... 
 
 Woolwich or Blackwall 
 
 Moorings or London Docks 
 
 Long Reach 
 
 Woolwich or Blackwall 
 
 Moorings or London Docks 
 
 Sheerness, Standgate I 
 
 Creek, or Blackstakes ^ 
 
 Chatham 
 
 Woolwich or Blackwall 
 
 Moorings or London Docks 
 
 Sheerness, Standgate ) 
 
 Creek, or Blackstakes J 
 
 Chatham 
 
 Moorings or London Docks 
 
 Sheerness, Standgate 
 Creek, or Blackstakes 
 
 Chatham 
 
 7 Feet 
 
 ami 
 
 under. 
 
 8 Feet. 
 
 £ s. rf, 
 
 3 13 6 
 
 4 12 
 
 4 16 6 
 
 5 5 9 
 5 16 
 
 1 18 9 
 
 2 6 
 
 2 15 3 
 
 3 4 6 
 
 9 3 
 
 1 3 
 
 1 7 6 
 
 2 15 3 
 
 9 Feet. 10 Feet. 11 Feet, 
 
 £ S. d. 
 
 4 2 9 
 
 5 7 9 
 
 5 12 3 
 
 6 1 6 
 6 9 9 
 
 2 3 3 
 
 2 10 6 
 
 3 19 
 
 3 10 9 
 
 14 9 
 
 1 7 6 
 
 1 14 
 
 2 19 
 
 £ s. d. 
 4 12 
 
 6 3 3 
 
 6 8 
 
 6 17 
 
 7 3 6 
 
 2 7 
 
 2 15 3 
 
 3 8 
 3 17 3 
 
 10 3 
 
 1 12 3 
 
 2 6 
 
 3 1 9 
 
 £ s. d. 
 1 3 
 
 6 18 
 
 7 2 6 
 7 11 9 
 7 17 3 
 
 2 10 6 
 
 12 Feet. 
 
 S. d. 
 5 9 
 
 11 9 
 
 18 3 
 8 10 3 
 8 19 6 
 
 2 19 9 
 
 2 19 93 
 
 3 13 6 4 
 
 4 2 9 4 
 1 5 3ll 
 
 1 16 9 2 
 
 2 6 02 
 
 3 4 63 
 
 3 4 6|3 8 
 
 18 61 2 
 
 1 7 61 11 3 
 
 3 10 93 13 6 
 1 4 91 7 6 
 
 3 4 6 
 
 3 13 6 
 
 18 6 
 
 3 13 6 
 
 4 2 9 
 
 3 8 
 
 3 17 3 
 
 1 2 
 
 3 17 3 
 
 4 2 6 
 
 1 14 
 
 3 10 9 
 
 4 
 1 4 9 
 
 4 
 
 1 16 9 
 
 3 13 6 
 
 4 2 9 
 
 1 7 61 
 
 4 2 9,4 
 
 9 
 
 2 9 
 
 16 6 
 
 10 
 
 4 3 
 
 15 3 
 
 13 6 
 
 2 9 
 
 16 9 
 6 
 
 2 9 
 
 £ s. d. 
 6 5 
 
 8 5 6 
 
 8 14 9 
 
 9 4 
 9 13 3 
 
 3 6 3 
 
 3 18 3 
 
 4 10 3 
 
 5 5 9 
 
 1 14 6 
 
 2 13 6 
 
 3 4 6 
 
 4 2 9 
 
 4 12 
 2 6 
 2 15 3 
 
 4 12 
 
 12 
 10 
 
 12 
 4 9 314 12 0,5 1 3 
 
 5 13 
 1 12 3 
 
 5 13 
 
 5 10 6 
 
 (a) See 26 & 26 Vict. c. 63, .ss. 39, 40.
 
 17 & 18 VICT. c. 164 
 
 789 
 
 TABLE U. (See Section 333, sub-sect. 5 ; ante, p. 709.) 
 Pilots for Piloting Ships within the undermentioned Limits. 
 
 OUTWARDS. 
 
 
 13 Feet. 
 
 14 Feet. 
 
 15 Feet. 
 
 16 Feet. 
 
 17 Feet. 
 
 18 Feet. 
 
 19 Feet. 
 
 1 
 20 Feet. 21 Feet. 
 
 22 Feet. 
 
 23 Feet 
 
 anil 
 upwurds. 
 
 
 £ s. d. 
 
 £ s. cl. 
 
 £ s. d. 
 
 £ s. d. 
 
 £ s. d. 
 
 £ s. d. 
 
 £ s. d. 
 
 £ s. d. 
 
 £ s. d. 
 
 £ s, d. 
 
 £ s. d. 
 
 
 6 13 6 
 
 7 7 3 
 
 7 16 6 
 
 8 14 9 
 
 9 8 6 
 
 10 17 
 
 11 10 
 
 12 17 6 
 
 14 5 3 
 
 16 11 3 
 
 18 8 
 
 
 8 19 6 
 
 9 13 3 
 
 10 7 
 
 11 9 
 
 11 14 6 
 
 14 1 6 
 
 16 13 
 
 19 6 6 
 
 21 5 
 
 23 3 9 
 
 25 2 3 
 
 
 9 8 6 
 
 10 
 
 10 16 3 
 
 11 10 
 
 13 3 6 
 
 15 9 
 
 18 11 9 
 
 21 5 
 
 23 
 
 24 16 9 
 
 26 13 6 
 
 
 10 2 6 
 
 11 9 
 
 11 14 6 
 
 12 8 6 
 
 14 3 6 
 
 16 5 9 
 
 19 11 
 
 22 1 6 
 
 24 16 9 
 
 27 12 
 
 — 
 
 
 10 11 6 
 
 11 10 
 
 12 8 6 
 
 13 2 3 
 
 14 14 6 
 
 17 6 
 
 20 10 3 
 
 23 4 6 
 
 — 
 
 — 
 
 — 
 
 
 3 11 9 
 
 3 15 6 
 
 4 2 9 
 
 4 10 3 
 
 5 1 3 
 
 5 16 
 
 6 8 9 
 
 7 14 6 
 
 8 14 
 
 9 13 3 
 
 10 12 6 
 
 
 4 2 9 
 
 4 7 
 
 4 13 9 
 
 5 5 
 
 5 16 
 
 6 15 3 
 
 8 5 6 
 
 9 13 3 
 
 10 12 6 
 
 11 11 9 
 
 12 15 3 
 
 
 4 19 
 
 5 8 6 
 
 5 16 
 
 6 4 3 
 
 7 2 6 
 
 8 3 9 
 
 9 4 
 
 11 11 9 
 
 1211 3 
 
 13 16 
 
 — 
 
 
 5 15 
 
 6 4 3 
 
 6 13 6 
 
 7 2 6 
 
 8 1 
 
 9 4 
 
 11 9 
 
 12 17 6 
 
 13 16 
 
 — 
 
 — 
 
 
 1 19 
 
 2 3 9 
 
 2 8 3 
 
 2 13 
 
 2 17 6 
 
 3 2 
 
 3 6 9 
 
 3 11 3 
 
 4 12 
 
 5 10 6 
 
 — 
 
 
 3 2 6 
 
 3 11 9 
 
 3 18 3 
 
 4 5 6 
 
 4 13 9 
 
 5 1 2 
 
 6 4 3 
 
 7 11 9 
 
 8 19 6 
 
 9 13 3 
 
 — 
 
 
 3 13 6 
 
 4 2 9 
 
 4 12 
 
 5 1 3 
 
 5 10 6 
 
 5 19 6 
 
 7 7 3 
 
 8 14 9 
 
 — 
 
 — 
 
 — 
 
 
 4 12 
 
 5 1 3 
 
 5 10 6 
 
 5 19 6 
 
 6 8 9 
 
 6 18 
 
 7 7 3 
 
 7 16 5 
 
 — 
 
 — 
 
 — 
 
 
 5 1 3 
 
 5 10 6 
 
 5 19 6 
 
 6 8 9 
 
 6 18 
 
 7 7 3 
 
 7 16 5 
 
 8 5 6 
 
 — 
 
 — 
 
 — 
 
 
 2 1.5 3 
 
 3 4 6 
 
 3 13 6 
 
 4 2 9 
 
 4 12 
 
 5 3 6 
 
 5 16 
 
 6 8 9 
 
 8 5 6 
 
 9 4 
 
 — 
 
 
 3 4 6 
 
 3 13 6 
 
 4 2 9 
 
 4 12 
 
 5 3 6 
 
 5 16 
 
 6 8 9 
 
 7 7 3 
 
 9 4 
 
 — 
 
 — 
 
 
 5 13 
 
 5 10 6 
 
 5 19 6 
 
 6 8 9 
 
 6 18 
 
 7 7 3 
 
 7 17 6 
 
 8 5 6 
 
 8 14 9 
 
 — 
 
 — 
 
 
 5 10 6 
 
 5 19 6 
 
 6 8 9 
 
 6 18 
 
 7 7 3 
 
 7 16 6 
 
 8 5 6 
 
 8 14 9 
 
 9 4 
 
 — 
 
 — 
 
 
 1 16 9 
 
 2 16 
 
 2 6 
 
 2 10 6 
 
 2 15 3 
 
 2 19 9 
 
 3 4 6 
 
 3 9 
 
 — 
 
 — 
 
 — 
 
 
 5 10 6 
 
 5 19 6 
 
 6 8 9 
 
 6 18 
 
 7 7 3 
 
 7 16 6 
 
 8 5 6 
 
 8 14 9 
 
 — 
 
 — 
 
 — 
 
 
 5 19 6 
 
 6 8 9 
 
 6 18 
 
 7 7 3 
 
 7 17 6 
 
 8 5 6 
 
 8 14 9 
 
 9 4 
 
 — 
 
 — 
 
 —
 
 790 
 
 31. S. ACT, 1854, SCHEDULE, 
 
 TABLE U. (Continued.) 
 
 INWARDS. 
 
 From 
 
 X,, Under 
 7 feet. 
 
 From 
 7 feet to 
 10 feet. 
 
 11 feet. 
 
 1 
 
 2 feet, i 1 
 
 1 
 
 3 feet. 
 
 S. d. 
 4 9 
 
 The Do-\vns - / 
 
 Noro, Slierness, ] 
 
 .Staudgate Crtek, > 5 5 
 Grave^end - ) 1 
 
 1 
 
 £ S. d. £ 
 
 7. 17 G S 
 
 1 
 1 
 
 13 
 
 d. 
 3 
 
 £ 
 9 
 
 9 
 
 d. ; £ 
 10 
 
 
 Loiigreacli - - ' 5 16 
 
 8 8 6 9 
 
 9 
 
 
 
 10 
 
 4 
 
 10 11 
 
 3 
 
 V 
 
 Blackball or London 6 12 3 
 
 8 19 6 10 
 
 1 
 
 4 
 
 9 
 
 11 
 
 
 
 6 '12 
 
 1 6 
 
 Standgate Creek 
 
 Gravesend - - 3 6 2 
 
 3 17 
 
 4 
 
 8 
 
 2 
 
 4 
 
 19 
 
 .J 
 
 10 3 ' 
 
 Aote 1. — Foreij,ai slii])s are to pay one-fonrth more than Britidi ship.s, except Avhen 
 
 are iT;tid l)y Biitisli shi]5.s, in Avhich cases such ships are to pay the same rates of pilotage 
 
 ISiotc 2. — Fur hair a loot exceeding the above draughts of Asater, the medium price behveen 
 
 For puttiiiET a Pilot on Board, and for Pilotage 
 
 of Ships to the Anchorage to the 
 
 Do-niis. (a) 
 
 60 Tons 
 
 and 
 
 nnder 150. 
 
 150 Tons 
 
 and 
 nnder 250. 
 
 2.-50 Tons 
 
 and 
 nnder 400. 
 
 400 Tons 
 
 and 
 under 600. 
 
 600 Tons 
 
 and 
 upwards. 
 
 From off Duugeness to off Folke- ) 
 stone; the Church bearing N.X.W. ■ 
 by compass - - ■■ - - ) 
 
 £ S, d. 
 2 
 
 £ .•^ d. 
 3 
 
 £ s. d. 
 3 10 
 
 £ s. d. 
 4 
 
 £ s. d. 
 •j 5 
 
 From off Folkestone to the South / 
 Foreland, the lights in one - - ^ 
 
 1 10 
 
 2 
 
 2 10 
 
 3 
 
 4 4 
 
 From off the South Foreland to the } 
 Downs j 
 
 1 5 
 
 1 .•) () 
 
 1 10 
 
 2 
 
 3 3 
 
 ('0 TMicu a pilot is put on board by a boat ironi the sliore, one-seventh to the pilot, and the 
 remaining six-sevenths to the boat and creAV.
 
 17 & 18 VICT. c. 104. 
 
 791 
 
 
 
 
 
 TABLE U. 
 
 {Continued.) 
 
 
 
 
 
 INWARDS. 
 
 14 feet. l.j feet. IC feet. 
 
 17 
 
 feet . 
 
 18 feet. 
 
 10 fc:l, 
 
 20 
 
 feet. 
 
 21 feet. 
 
 •22 feet. 
 
 23 feet 
 
 iiiid 
 
 upwards. 
 
 £ s. d.£ s. d.£ s. d. 
 
 £ 
 
 s. d. 
 
 £ 6'. d. 
 
 £ s. 
 
 d. 
 
 £ 
 
 s. d. 
 
 £ s. d.£ s. d. 
 
 £ s. d. 
 
 ll r. 
 
 11 16 3 
 
 12 12 
 
 13 
 
 7 9 
 
 16 1 3 
 
 19 
 
 
 
 22 
 
 I 
 
 24 5 
 
 26 9 2 
 
 28 13 3 
 
 11 1-8 10 
 
 12 18 3 
 
 13 14 (» 
 
 15 
 
 9 
 
 17 14 4 
 
 21 4 
 
 2 
 
 24 
 
 5 1 
 
 26 9 2 
 
 28 13 3 
 
 30 17 4 
 
 12 17 3 
 
 14 4 
 
 14 16 
 
 16 
 
 13 9 
 
 19 7 5 
 
 23 8 
 
 3 
 
 26 
 
 9 2 
 
 28 13 3 
 
 — 
 
 — 
 
 G 1 3 
 
 6 12 3 
 
 7 3 3 
 
 7 
 
 14 4 
 
 8 5 4 
 
 8 16 
 
 4 
 
 9 
 
 7 4 
 
 — 
 
 — 
 
 — 
 
 privileged to enter the ports uf the V. K. upon paying the same (lutie;^ of tonnage as 
 
 only as are payable hy British ship.s. 
 
 the two limits. — For intermediate distances a proportiimale rale. 
 
 T ll .* r , . fFor a boat oi' a class carrying au anchor 
 
 mi i of above 4 c^\•t. with a correspondiu" 
 
 Ihames ,' . v ^ 
 
 1 'I tow line 
 
 above ^ 
 
 Gravesend 
 
 Ditto 
 L Ditto 
 
 ditto 
 ditto 
 
 ^ Per trip lor the whole 
 
 I distance from Graves- 
 
 ... £2 2 oy end to London; and 
 
 2 cwt. 1 1 I in ])roporlion for any- 
 
 under 2 cAvt. 15 Oj part of that distance. 
 
 And for each man's service in those boats, 8*;. per tide. 
 
 Tor remoAing a Ship from I\Iooiings into a Dry or AVet Docli^ : — 
 
 For a ship under 300 ton.- 
 „ 300 to GOO „ 
 
 „ 600 to 1000 „ 
 
 above 1000 „ 
 
 ...£0 15 
 
 .. 1 1 
 
 .. 1 11 6 
 
 .. 2 2
 
 792 M. s. ACT, 1854, schedule, 
 
 TABLE v.— (See Section 455 ; ante, p. 734.) («) 
 Fees and Remuneration of Receivers. 
 
 For every examination on oath instituted by a receiver vnth. resj)ect to £ s. d. 
 any sliip or boat which may be or may have been in distress, a fee not 
 exceeding' ... ... ... ... ... ... ... ... ... 1 
 
 But so that in no case shall a larger fee than two poimds be charged 
 
 for examinations taken in respect of the same ship and the same 
 
 occuiTence, whatever may be the number of the deponents. 
 
 For every report required to be sent by the receiver to the secretary of 
 
 the committee for managing the affairs of Lloyd's in Loudon, the 
 
 simi of 10 
 
 For wreck taken by the receiver into his custody, a per-centage of five 
 per cent, upon the value thereof. 
 
 But so that in no case shall the whole amount of jDcr-centage so 
 payable exceed ^20. 
 In cases where any services are rendered by a receiver, in respect of any 
 ship or boat in tlistress, not being Avreck, or in respect of the cargo or 
 other articles belonging thereto, the following fees instead of a per- 
 centage ; that is to say, 
 
 If such shij) or boat Avith her cargo equals or exceeds in value J600, 
 the sum of £2 for the hrst, and the sum of Jl for every sub- 
 sequent day during wluch the receiver is employed on such ser- 
 vice ; but if such sliip or boat with her cargo is less in value than 
 ^600, one moiety of the above-mentioned sum. 
 
 TABLE W.— (See Section 486 ; ante, p. 741.) 
 Salvage Bond. 
 
 M.B. — Any of the particulars not hiovm, or not required by reason of the claim 
 being only against the cargo, dx., may be omitted.'] 
 
 Whereas certain salvage services are alleged to have been rendered by the ship 
 [insert names of ship and of commander], commandei', to the merchant ship [insert 
 names of ship and master], master, belonging to [nccme and place of business or resi- 
 dence of oicner of ship], freighted by [the same of the freighter], and to the cai'go 
 therein, consisting of [state very shortly the descriptions and. quantities of the goods, 
 and the names and, addresses ef their oicners and consignees] : 
 
 And whereas the said ship and cargo have been brought into the port of [insert 
 name and situation of port], and a statement of the salvage claim has been sent to 
 [insert the name of the consular officer or vice-admiralty judge, and of the office he 
 Jills], and he has fixed the amount to be inserted in this bond at the sum of [state 
 the sum] : 
 
 Now I, the said [master's name], do hereby, in jDursuance of the Merchant 
 Shipping Act, 1854, bind the several o\\Tiers for the time being of the said ship 
 and of tlie cargo therein, and of the freight payable in resjDect of such cargo, and 
 their respective heirs, executors, and administrators, to pay among them such sum 
 not exceeding the said sum of [state the sum fixed], in such proportions and to such 
 persons as [if the parties agree on any other Court, substitute the name of it here], the 
 High Court of Admiralty in England shall adjudge to be jsayable as salvage for 
 the sennces so alleged to have been rendered as aforesaid. 
 
 In witness whereof I have hereunto set my hand and seal, this [insert the date] 
 day of 
 
 Signed, sealed, and delivered by the said [master's name]. (l. a.) 
 
 In the presence of [name of consular officer or vice-admiralty judge, and of the 
 office he Jills.] 
 
 (a; bee 17 & 18 Vict. c. 120, ss. 12, 13 ; 18 i 10 Vlct. c. Ul, s, 20
 
 17 & 18 VICT. c. 120. 793 
 
 No. III. 
 
 17 & 18 Vict. c. 120. 
 
 An Act to repeal certain Acts and Parts of Acts relating to Merchant Shipinng, and 
 to continue certain Provisions in the said Acts. 
 
 Whereas by " The M. S. Act, 1854," the Acts relating to Merchant Shipping 
 are amended and consolidated, and it is expedient to repeal certain Acts and parts 
 of Acts relating to Merchant Shipping, and to make temporary provisions with 
 re.spect to certain ot tlie matters referred to in the said Acts : Be it therefore 
 enacted, &c., as follows : - Prelimmary. 
 
 1. This Act may be cited for all purposes as " The Merchant Shipping Kepeal Short title of 
 Act, 1854." ^<=t. 
 
 2. In the construction and for the purposes of this Act the interpretation of interpretation 
 terms contained in " The M. S. Act, 1854," shall be considered as incorporated of terms in this 
 with and forming part of this Act. ^'^^' 
 
 3. With the exception of such provisions of this Act as are hereinafter expressly Commencement 
 stated to be intended to come into operation immediately after the passing thereof, °^ ^^^' 
 
 this Act shall come into operation at the same time as the M. S. Act, 1854. 
 
 4. There shall be hereby repealed — Repeal of Acts 
 The several Acts and parts of Acts set forth in the first schedule (b) hereto, to ^hedui""^ ''^ 
 
 the extent to which such Acts or parts of Acts are therein expressed to be repealed, 
 and all such provisions of any other Acts or of any charters, and all such laws, 
 customs, and rules as are inconsistent with the provisions of the M. S. Act, 1854 : 
 Provided (c) that such repeal shall not aftect — 
 
 1. Any provisions contained in the Act of 7 Will. 4, c. 79, as to title, appli- 
 
 cation of purchase money, or borrowing money, and having relation to 
 the power of purchasing lighthouses given to the Trinity House by the 
 same Act : 
 
 2. Any secuiity duly given before this Act comes into operation : 
 
 3. Any thing duly done before this Act comes into operation : 
 
 4. Any liability accruing before this Act comes into operation : 
 
 5. Any penalty, forfeiture, or other jjunishment incuned or to be incurred in 
 
 respect of any otfence committed before this Act comes into operation : 
 
 6. The institution of any investigation or legal proceeding or any other remedy 
 
 for ascertaining, enforcing, or recovering any such liability, penalty, for- 
 feiture, or punishment as aforesaid : 
 
 7. Any appointment, bye-law, regulation, or licence duly made or granted under 
 
 any enactment hereby repealed, and subsisting at the time when this Act 
 comes into operation ; and the same shall continue in force, but shall be 
 subject to such provisions of the M. S. Act, 1854, as are applicable thereto 
 respectively. 
 
 5. [Repealed by Statute Law Revision Act, 1875.] 
 
 6. The 4th and 9th sections of "The Pilotage Law Amendment Act, 1853," Construction of 
 shall be construed as if the 5th part of "The M. S. Act, 1854," were therein ^^"""1,.^ t " 
 referred to, in Ueu of the Act of 6 Geo. 4, c. 125. Law Amend-^'' 
 
 ment Act, 1853. 
 
 (6) Heepost, p. 79«. 
 
 (c) Sec Statute Law Revision Act, 870.
 
 '94 
 
 31. S. ACT UErEAL ACT, 1S54, 
 
 Kxpenh•c^ of life 
 bonis, &c., ruay 
 be charged on 
 iiicixantile ma- 
 riue fund. 
 
 Existing lia- 
 
 Keceiver- 
 gencral to con 
 form to tlirec- 
 tioDs of Board 
 of Trade. 
 
 Powers of Board 
 of Trade as to 
 appointment of 
 receivers. 
 
 7. Thf; Board of Trade may, out of the Mercantile Marine Fund, direct pay- 
 ment to be made of 8ucli expenses lor establishing and maintaining on the coasts 
 of the U. K. proper life boats, Avith the necessary crews and equipments, and for 
 aftording assistance towards the preservation of life and proi^erty in cases of ship- 
 '.vreck and distress at sea, and for the granting rewards for the preservation of lil'e 
 in such cases, as it thinks fit , [and this section shall come into operation imme- 
 diately after the passing of this Act] («). 
 
 '^- ^^tliing in the M, S. Act, 1854, or in this Act contained, shall operate to 
 
 liitities on mer- prevent the exercise of the powers contained in the 12th and Kith sections of the 
 
 fimd cout\'mu!d ^^- *'^- ^^'''''' -^i»<?»^li"^^"t -^^^j 1853, of paying the debts, liabilities, and expenses 
 
 therein mentioned out of the Mercantile Marine Fund. [The rest of this section 
 
 is repealed by Statute Law Eevision Act, 1875.] 
 
 9. [Repealed by Statute Law Eevision Act, 1875.] 
 
 10. The receiver-general of droits of Admiralty shall, as to all things to be 
 done by him in virtue of his office, conform to all lawful directions given for that 
 purpose by the Board of Trade ; and on a vacancy occurring in his oliice no 
 successor shall be appointed, but thereupon all powers and privileges vested in 
 such receiver-general shall be transferred to the Board of Trade ; [and this section 
 shall come into operation immediately after the passing of this Act] (a). 
 
 11. Receivers appointed by the said receiver-general under the Act of the 
 10 Vict. c. 99, shall hold their offices only during the pleasure of the Board of 
 Trade ; and the Serjeants of the Admii-alty of the Cinque Ports, their deputies or 
 other officers, authorized to perform the duties and to exercise the powers -svithin 
 the jiirisdiction of the Cinque Ports elsewhere performed and exercised by such 
 receivers as aforesaid, shall perform and exercise the same only diu-ing the 
 pleasure and subject to the directions of the Board of Trade ; and all such re- 
 ceivers, Serjeants, deputies, and other officers as aforesaid, shall possess hi the 
 several districts within which they haA-e hitherto exercised their duties, the same 
 powers, rights, and privileges, and j^erform the same duties, as are by the said 
 M. S. Act, 1854, vested in and conmiitted to tlie receivers therein mentioned, 
 save only that they shall not be entitled to take the command in cases of ships 
 or boats stranded or in distres-^, unless authorized so to do by the Board of 
 Trade. 
 
 12. There shall be ]jayaT)le to such receivers, serjeauts, deputies, and other 
 officers as aforesaid, such fees and other remuneration as are by the said M. S. 
 Act, 1854, made payable to receivers appointed thereunder, ami pajinent thereof 
 shall be made by the same persons and in the same mamier, and shall be capable 
 of being enforced by the same means as payment of the fees or other remunera- 
 tion payable to the receivers appointed xinder "The M. S. Act, 1854," are payable 
 or capable of being eirforced, or as near thereto as circumstances permit ; and, 
 save as aforesaid, and saving also any exjienses actually and properly incurred, no 
 .such receiver serjeant, deputy, or other officer as aforesaid, shall be entitled to 
 demand or receive from any person any fees or other sums in respect of any ser- 
 vices performed by him as receiver ; [and this section shall come into operation 
 immediately after the passing of this Act] (n). 
 
 13. All fees or other remuneration received by any such receiver, serjeant, 
 deputv, or other officer as aforesaid, may be applied by him to his own use. 
 
 14. 'The provisions contamed in the 9th part of '' The M. S. Act, 1854," shall 
 come into operation at the same time as if the same were herein repeated, and 
 were hereby expressed to be intended to come into operation immediately after 
 
 raj-menl of 
 receivers. 
 
 Application of 
 fees. 
 
 Kinth part of 
 M. S. Act, 
 1864, to conic 
 into opcnition 
 
 immediately (o) the passing of this Act ; and the following Acts, that is to say, the Act of the 
 7 Geo. 2, c. 15, the Act of the 26 Geo. 3, c. 86, and the Act of the 53 Geo. 3, 
 c. 159, shall be considered as repealed immediately after the passing. 
 
 Mode of pro- 
 cedure in 
 criminal tuics. 
 
 __ ^ ^ ^ ^ of thiri 
 
 Act. 
 
 15. All criminal proceedings under "The Seamen's Fund Winding-up Act, 
 1851," "The Pilotage Law Ameiubnent Act, 1853," "The M. S. Law Amendment 
 Act, 1853," or this Act, shall be carried on in the same manner as similar pro- 
 teetlings under "The M. S. Act, 1854;" and all rules of laAV, practice, and evi- 
 
 («) Sec Statute Law Rcvisiou Act. 1S7-3.
 
 17 & 18 VICT. c. 120. 795 
 
 (lence wliicli are applicable to such last-mentioned proceedings shall Le applicable 
 to criminal proceedings imder this Act. 
 
 16. If a native of any country in Asia, Africa, or of any of the islands in the Pen.'iiiy (in 
 South Sea or the Pacific Ocean, or of any other coinitry not having any consul in leaving* ceiia'iii* 
 the U. K., is brought to the U. K. in any ship, British or foreigjj, as a seaman, seamen in 
 and is left in the U. K., and -within six months of his being so left becomes ^^^Jj^^^^'-."^ ^'"'^ 
 chargeable upon the i>oor-rate, or commits any act by reason of the committal 
 whereof he is liable to be convicted as an idle and disorderly person, or any other 
 act of vagrancy, the master or owner of the said ship, or in case of a foreign ship 
 the person who is consignee of the ship at the time of the seanurn being so left as 
 aforesaid, shall incur a penalty not exceeding £30, unless he can show that the 
 person so left as aforesaicl quitted the ship without the consent of the master, or 
 that due means have been atforded by such master, owner, or consignee, or one of 
 them, to such person, of returning to his native country, or to the country in 
 which he was shipped ; and the court inflicting such penalty may order the whole 
 or any part of such penalty to be applied toA\'ards the lelief or sending home of 
 such person.
 
 796 
 
 M. S. ACT REPEAL ACT, 1854, 
 
 The following is from the Schedule to which this Act refers, which Schedule 
 also sets out the titles of the Acts : || 
 
 Reference to Act. 
 
 Extent of Repeal. 
 
 8 Eliz. cap. 13. 
 12 Anne, stat. 2, cap. 18. 
 4 Geo. 1, cap. 12. 
 7 Geo. 2, cap. 15. 
 20 Geo. 2, cap. 38. 
 26 Geo. 2, cap. 19. 
 26 Geo. 3, cap. 86. 
 26 Geo. 3, cap. 101. 
 
 28 Geo. 3, cap. 25. 
 
 29 Geo. 3, cap. 52. 
 
 38 Geo. 3, cap. 57 (local and personal) 
 46 Geo. 3, cap. 106. 
 46 Geo. 3, cap. 132. 
 48 Geo. 3, cap. 130. 
 
 50 Geo. 3, cap. 95. 
 
 51 Geo. 3, cap. 66. 
 
 52 Geo. 3, cap. 115. 
 
 53 Geo. 3, cap. 159. 
 
 54 Geo. 3, cap. 136. 
 
 55 Geo. 3, cap. 67 (local and personal). 
 59 Geo. 3, cap. 12. 
 
 I «&; 2 Geo. 4, caj). 76. 
 
 4 Geo. 4, cap. 88. 
 6 Geo. 4, cap. 125. 
 9 Geo. 4, cap. 86. 
 
 II Geo. 4, cap. 20. 
 
 The whole Act, except section 5. 
 
 So much as is not already repealed. 
 
 So much as is not already repealed. 
 
 The whole Act. 
 
 So much as is not already repealed. 
 
 So much as is not already repealed. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 Sections 75 and 76. 
 
 The whole Act. 
 
 The Avhole Act. 
 
 The whole Act. 
 
 The whole Act so far as relates to light- 
 houses and light dues. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The Avhole Act. 
 
 Section 32. 
 
 The whole Act, except sections 1, 2, 3, 
 4, 5, 15, 16, and 18. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 Section 82.
 
 17 & 18 VICT. 0. 120. 
 
 797 
 
 Reference to Act. 
 
 Extent of Repeal. 
 
 4 & 5 Will. 4, cap. 52. 
 5&6 Will. 4, cap. ]9. 
 
 6 & 7 Will. 4, cap. 79. 
 1 & 2 Vict. cap. 66. 
 
 3 & 4 Vict. cap. 68. 
 
 7 & 8 Vict. cap. 112. 
 
 8 & 9 Vict. cap. 86. 
 8 & 9 Vict. cap. 87. 
 
 8 & 9 Vict. cap. 89. 
 8&9 Vict. cap. 116. 
 
 9 & 10 Vict. cap. 99. 
 12 & 13 Vict! cap. 29. 
 
 12 & 13 Vict. cap. 88. 
 
 13 & 14 Vict. cap. 93. 
 
 13 & 14 Vict. cap. 95. 
 
 14 & 15 Vict. cap. 35. 
 14 & 15 Vict. cap. 79. 
 14 & 15 Vict. cap. 96. 
 14 & 15 Vict. cap. 102. 
 
 16 & 17 Vict. cap. 129. 
 
 16 & 17 Vict. cap. 131. 
 
 17 & 18 Vict. cap. 5. 
 
 So much as is not already repealed. 
 
 So much as is not already repealed. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 Sections 45, 51, 53, and 140. 
 
 Section 10. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 The whole Act. 
 
 Section 14. 
 
 The whole Act, except section 10. 
 
 The whole Act. 
 
 The whole Act. 
 
 Sections 29, 30, 31, 32, 33, 34, 35, 36, 
 37, 38, and 61. 
 
 The whole Act, except sections 3, 4, 5, 
 8, 10, 11, 12, 13, and so much of sec- 
 tion 9 as relates to the recovery of 
 pilotage rates by Cinque Ports pilots, 
 licensed before the Act came into 
 operation. 
 
 The whole Act, except sections 12, 13, 
 24, 28, and 29. 
 
 Section 4.
 
 ^9S 
 
 21. IS. ACT AMEXUM£:\T ACT, 1855^ 
 
 Slidi't tiile of 
 Act. 
 
 Culonial LUjM- 
 honscs. 
 
 H. yi. may 
 by iirdor in 
 council fix (lues 
 f(ir cc^Ionial 
 lislithouses. 
 
 X(i >ucli <lncs to 
 111' levied in any 
 colony without 
 the consent of 
 the colonial 
 legislature.; 
 Mmle of collect. 
 Ing the said 
 dues. 
 
 nncs to he paid 
 over to H. :M.'s 
 l)ay-master- 
 general. 
 
 Dues to b? ap- 
 plied to expenses 
 of lighthouse, 
 i:c., tor wliich 
 they are levied. 
 
 Power to borrow 
 inoni-v nil se- 
 curirv of dues. 
 
 "THE MERCHANT SHIPPING ACT AMENDMENT ACT, 1855." 
 
 18 & 19 Vict. c. 91. 
 
 An Act to facilitate the Erection and Maintenance of Colonial Lifjhthouses, and 
 othervise to amend the Merchant Shippiwj Act, 1854. 
 
 [14tli August, 1855.] 
 
 Whereas it is expedient to make provision for facilitating the erection and 
 luainteuance of liglitliouses in the British possessions abroad, and otlierwise to 
 amend the M. S. Act, 1854 : Be it therefore enacted, &c., as follows : 
 
 1. This Act maybe cited as "The Merchant Shipping Act Amendment Act, 
 1855," and sliall be' taken to be part of the M. S. Act, 1854, and shall be construed 
 accordingly. 
 
 2. In any case in which any lighthouse, buoy, or beacon has been or is here- 
 after erected or placed on or near the coasts of any British possession, by or with 
 the consent of the legislative authority of such possession, H. M. may, by order in 
 council, fix such dues in respect thereof, to be paid by the owner or master of 
 every A\\\\ which passes the same or derives benefit therefrom, as H. M. may deem 
 reasonaljle, and may in like manner, from time to time increase, diminish, or 
 re])eal such dues, and from the time specified in such order for the commencement 
 of the dues thereby fixed, increased, or diminished, the same shall be leviable 
 throughout H. M.'s dominions in manner herein- after mentioned. 
 
 3. No such dues as aforesaid .shall be levied in any colony unless and until the 
 legislative authority in sitch colony has, either by address to the Crown, or by an 
 Act or ordinance duly passed, signified its opinion that the same ought to be 
 levied in such colony. 
 
 4. The said dues shall in the U. K. be collected by the same persons by whom, 
 and by the same means, in the same manner, and subject to the same conditions, 
 so far'as circumstances permit, by, in, and subject to wliich the light dues leviable 
 under the M. S. Act, 1854, are collected, and shall in each British possession 
 abroad be collected by such persons as the governor of such possession abroad 
 may appoint for the purpose, and shall be collected by the same means, in the 
 same manner, and subject to the same conditions, so far as circumstances permit, 
 by, in, and suliject to which the light dues leviable under" the M. S. Act, 1854, 
 are paid and collected, or by such other means, in such other manner, and subject 
 to such other conditions as the legislative authority in such possession may 
 direct. 
 
 5. All dues levied under tliis Act shall be imid over to H. M.'s paymaster- 
 general at such times and in such manner as the Board of Trade may direct, and 
 .^hall be applied, paid, and dealt with by him, for the purposes herein-after men- 
 tioned, in such manner as such board may direct. 
 
 6. The dues levied under the authority of this Act in respect of any such light- 
 house, buoy, or beacon as aforesaid shall, after deducting any expenses incurred in 
 collecting tlie same, be applied for the purpose of paying the expenses incurred in 
 erecting and maintaining such lighthouse, buoy, or beacon, and for no other 
 purpose whatever. 
 
 7. For the purpose of constructing or repairing any .such lighthouse, buoy, or 
 beacon as aforesaid, the Buard of Trade may raise, upon the security of the dues 
 to be levied in respect thereof, such sums of money as they may deem fit ; and 
 the commissioners of H. M.'s treasury, out of any monies which may be provided 
 by pailiament, the Public Works Loan Commissioners, or any other person or 
 body of persons, may advance the same accordingly, such advances to be made in 
 the same manner, -with the same ])owers, and subject to the same provisions, so 
 far as circumstances permit, in, with, and subject to which, under the M. S. Act, 
 1854, advances may be made upon the seciuity of the mercantile marine fund for 
 the construction and repair of lighthouses in the U. K. 
 
 \
 
 18 & 19 VICT. c. 91. 799 
 
 8. Accounts shall he kept of all sums expentled in the construction, repair, Accounts for 
 or maintenance of every liglitliouse, buoy, or beacon in tlie British possessions f-^cii ii&i>tii<>iise, 
 abroad for Avhich dues are levied under the authority of this Act, and of the dues and laii/iielore 
 received in respect thereof, in such manner as the lioard of Trade may direct, and pariianieni.aua 
 shall be laid before parliament annually ; and the said accounts shall be audited ^" ^° a"<iit^''- 
 in such manner as H. M. may hy order in council direct. 
 
 9. Any person who, in any declaration made in the presence of or produced to Rcrji.^trii of 
 any registrar of shipping, in j^ursuance of the 2nd part of the M. S. Act, 1854, or -j^^'- 
 
 in any documents or other evidence produced to such registi'ar, wilfully makes, or Penalty on false 
 assists in making, or procures to l^e made, any false statement concerning the title J^Ji'^'ei-'p"^'tn 
 to or the ownership of or the interests existing in any ship, or any share or shares Merchant Ship- 
 in any ship, or wlio utters, produces, or makes use of any declaration or document i''"S Act. 
 containing any such false statement, knowing the same to be false, shall be guilty 
 of a misdemeanor. 
 
 10. Shares in ships registered under the said M. S. Act, 1854, shall be deemed to Shares in ship- 
 be included in the word'" stock," as defined by the Trustee Act, 1850, and the pro- J^rlf^tee Act "^"^ 
 visions of such last-mentioned Act shall be applicable to such shares accordingly, isso. ' 
 
 11. In any case in whicli any bill of sale, mortgage, or other instrument for the I'^orms of instrn- 
 disposal or transfer of any ship or any share or shares therein or of any interest ^^^ ^' 
 therein is made in any form or contains any particulars other tlian the i'orm and 
 jvarticulars prescribed and approved for the purpose by or in pursuance of tlie 
 
 M. S. Act, 1854, no registrar shall be required to record tlie same witliout the 
 express direction of the commissioners of H. M.'s customs. 
 
 12. Upon the transfer of the registry of a ship from one port to another, the Delivery of cov- 
 certiticate of registry required by the 90th section of tlie IL S. Act, 1854, to be n-ansfei^oT 
 delivered up for that purpose may be delivered up to the registrar of either of registry, 
 such ports. 
 
 13. [Repealed by 34 & 35 Vict. c. 110, s. 12.] 
 
 14. The owner of any ship which is measured under Rule II., contained in the Ships measnroa 
 22nd section of the M. S. Act, 1854, may at any subsequent period apply to the Z'ybomea"' 
 commissioners of customs («) to have the said ship remeasured under Ritle I., con- sured under 
 tained in the 21st section of the same Act ; and the said commissioners (a) may Ri-iiel. 
 thereupon, and upon payment of such fee not exceeding seven shillings and six- 
 pence for each transverse section as they may authorize, direct the said ship to be 
 remeasured accordingly, and the number denoting the register tonnage shall be 
 
 altered accordingly. 
 
 of the Board of Trade, shall have the same effect to all intents and purposes as the 
 origmal register of which the same is a copy or transcript. 
 
 IG. The Board of Trade may issue instructions concerning the relief to be Masters and 
 administered to distressed seamen and apprentices, in pursuance of the 211th and 'S<'«^"- 
 212th sections of the M. S. Act, 1854, and may by such instructions determine in Extension of 
 Avhat cases and under what circumstances and conditions such relief is to be pi'o^'sions con- 
 administered ; and all powers of recovering expenses incurred \vith respect to re[ief°?f^desti- 
 distressed seamen and apprentices, which by the 213th section of the said Act are tute seamen, 
 given to the Board of Trade, shall extend to all expenses incurred by any foreif^n 
 government for the purposes aforesaid, and repaid to such government by H. M.'a 
 government, and shall likewise extend to any expenses incurred by the conveyino- 
 home such seamen or apprentices in foreign as well as British ships ; and all pro'^ 
 visions concerning the relief of distressed seamen and apprentices, being sulijects 
 of H, M., which are contained in the said sections of the said Act, and in this 
 section, shall extend to such seamen and apprentices, not lieing subjects of H. M. 
 as are reduced to distress in fureign parts by reason of their having been ship- 
 wrecked, discharged, or left Ijehind from any British ship ; subject, nevertheless, 
 to such modifications and directions concerning the cases m wliich relief is to be 
 given to such foreigners, and the country to which they are to be sent, as the 
 Board of Trade may, under the circumstances, think fit to make and issue. 
 
 (fi) Kow Board of Trade, sec 35 & 3C Vict. (h) Now registrar-general of shippins and «f>i- 
 
 c- '3, s 3. men, sec 36 & 3G ^'ict. c. 73, s. 4.
 
 800 
 
 M. S. ACT AMENDMENT ACT, 1855, 
 
 Remuneration 
 for services by 
 coast-guard. 
 
 Enactment con- 17, The enactment of the INI. S. Act, 1854, relating to savings banks shall a^Dply 
 
 bank^e^xttnlTeT to all seamen, and to their wives and families, whether such seamen belong to the 
 
 to seamen in the roval navy or to the merchant service, or to any other sea ser\'ice. 
 
 ua'^-. 'i8. Any naval court summoned, under the provisions of the M. S. Act, 1854, to 
 
 powers of naval hear any complaint touching the conduct of the master or any of the crew of any 
 
 courts. sliip, shall, in addition to the powers given to it by the said Act, have power to 
 
 ti-y the said master or any of the said crew for any offences against the M. S. Act, 
 
 1854, in respect of which two justices would, if the case were tried in the U. K., 
 
 have power to comict summarily, and by order duly made to inflict the same 
 
 punishments for such ofiences which two justices might in the case aforesaid 
 
 inflict upon summary conviction ; provided, that in cases where an offender is 
 
 sentenced to imprisonment the sentence shall be confirmed in writing by the 
 
 senior naval or consular officer present at the place where the court is held, and 
 
 the place of imprisonment, whether on land or on board ship, shall be approved 
 
 by him as a proper place for the purpose, and copies of all sentences made by any 
 
 naval court summoned to hear any such complaint as aforesaid shall be sent to 
 
 the commander-in-chief or senior naval officer of the station. 
 
 Wrecl-s 19- Whenever any articles belonging to or forming part of any foreign ship 
 
 Casvanies,'and which has been wrecked on or near the coasts of the U. K., or belonging to or 
 
 Salvage. formino- part of the cargo thereof, are found on or near such coasts, or are brought 
 
 In casro7wi-eck into any port in the U.K., the consul-general of the country to which such ship, 
 
 of foreign ships, qj.^ jj^ {{iq q^^q of cargo, to wliicli the o^niers of such cargo, may haA-e belonged, or 
 
 to bTde?med^' any consular officer of such country authorized in tliat behalf by any treaty or 
 
 agent of owner, agreement with such country, shall, in the al)sence of the owner of such ship or 
 
 articles, and of the master or other agent of the owner, be deemed to be the agent 
 
 of the owner, so far as relates to the custody and disposal of such articles. 
 
 20. In cases where serA'ices are rendered by officers or men of the coast-guard 
 ser\dce in watching or protecting shipwrecked property, then, unless it can be 
 sho-wn that such ser\dces have l)een declined by the o-wner of such property or his 
 agent at the time they were tendered, or that salvage has been claimed and 
 awarded for such services, the owner of the shipwrecked property shall pay in 
 respect of the said ser\dces remuneration according to a scale to be fixed by the 
 Board of Trade, so, however, that such scale shall not exceed any scale by which 
 payment to officers and men of the coast-guard for extra duties in the ordinary 
 service of the commissioners of customs is for the time being regulated ; and such 
 remuneration shall be recoverable by the same means and shall be paid to the 
 same persons and accounted for and applied in the same manner as fees received 
 by receivers appointed under the M. S. Act, 1854. 
 
 21. If any person, being a British subject, charged with ha^dng committed any 
 LepaT Procedure ^p^j^^^g q^. offence on board any British sliip on the high seas or in any foreign port 
 Jurisdiction in or harbour, or if any person, not being a British subject, charged with having 
 case of offences committed aity crime or offence on board any British ship on the high seas, is 
 
 "'"'" ~' '" found within the jiuisdiction of any court of justice in H. M.'s clominions which 
 would have had cognizance of such crime or offence if committed within the 
 limits of its ordinary jurisdiction, such court shall have jurisdiction to hear and 
 try the case as if such crime or offence had been committed within such limits : 
 Provided, that nothing contained in this section shall be construed to alter or 
 interfere with the Act of the 13th Vict. c. 96. 
 
 22. It shall be the duty of the East India Company to take charge of and send 
 home or otherwise pro\dde for all persons, being lascars or other natives of the 
 territories under the government of the said company, who are found destitute in 
 the U. K., and if any such person is relieved and maintained by any guardians, 
 overseers, or other persons admimstering the relief of the poor, such overseers, 
 "uardians, or other persons may, by letter sent through the post or otherwise, 
 "ive notice thereof in writing to the secretary of the coml of directors of the East 
 India Company, specifying, so far as is practicable, the following particuLars, 
 viz., — 
 
 1. The name of the person so relieved or maintained : 
 
 2. The presidency or district or part of the territories of the East India Com- 
 pany of wluch he professes to be a native : 
 
 3. The name of the ship in which he was brought to the U. K. 
 
 on board ship. 
 
 MisceUaneous. 
 
 Relief of desti- 
 tute lascare.
 
 18 & 19 VICT. c. 111. 801 
 
 4. The port or place abroad from which such ship sailed, and the port or place 
 in the U. K. at which such shij) arrived, when he was so brought to the 
 U. K., and the time of such arrival : 
 And the said East India Company shall repay to the said overseers, guardians, or 
 other persons, out of the revenues of the said Company, all monies duly expended 
 by them in relieving or maintaining such destitute person, after the time at wliich 
 such notice aforesaid is sent or otherwise given. 
 
 23. It shall be lawful for any master or OAvner of a ship or his agent to enter Contracts may 
 into agreements with lascars or natives of the territories of the East India Com- nfith-esliriiuiia, 
 pany, binding them to proceed to any port or ports in the U. K., either as seamen under certain 
 or as passengers, and there to enter into a further agreement to serve as seamen in bhidin<i"heni 
 any ship which may hajipen to be there, and to be bound to any jDort in the to go to the 
 territories of the East India Company ; provided, that every such original agree- ^{■^■j.''""^, ■ 
 ment shall be made in such form, and shall contain such provisions, and shall be other ships back 
 executed in such manner, and under such conditions for securing the return of to India or else- 
 such lascars or natives to their own country, and for other purposes, as the ^''''^'''^• 
 governor-general of India in council, or the governors of the respective jjre- 
 
 sidencies in which the original agreement is made, in council may direct ; and if 
 any lascar or other person who has bound himself by any such original agreement 
 is, on arriving in the U. K. , required to enter into a further agreement to serve as 
 a seaman in any ship bound to any port in the territories of the East India Com- 
 pany, and if it is certified by some officer appointed for that purpose by the East 
 India Company that such further agreement is a proper agreement in all respects 
 for such lascar or other person to enter into, and is in accordance with the original 
 agreement, and that the ship to which such further agreement relates is in all 
 respects a proper sliiis for such lascar or other person to serve in, and that there is 
 not, in the opinion of such officer, any objection to the fuU performance of the 
 said original agreement, such lascar or other person shall be deemed to be engaged 
 under such farther agreement, and to serve as a seaman in the ship to which it 
 relates, and shall thereupon be deemed to be for all purposes one of the crew of 
 the ship ; and for every lascar or other person in respect of whom such certificate 
 is applied for, the person applying for the same shall pay to such officer as 
 aforesaid such fee as the East India Company may appoint, not exceeding 10s. 
 
 24. NotMng herein contained shall be deemed to repeal or affect any pro\dsions Saving of fomier 
 contained in the 25th, 26th, 27th, 28tli, 29th, 30th, 31st, or 34th sects, of 4 Geo. 4, ^""ctments. 
 
 c. 80, or in the 16th sect, of 18 Vict. c. 120. 
 
 18 & 19 Vict, c. 111. 
 
 An Act to amend the Law relating to Bills of Lading. 
 
 [14th August, 1855.] 
 
 "Whereas by the custom of merchants a bill of lading of goods being transferrable 
 by endorsement the property in the goods may thereby pass to the endorsee, bu 
 nevertheless all rights in respect of the contract contained in the bill of lading- 
 continue in the original shipper or owner, and it is expedient that such rights 
 should pass mth the proj)erty : And whereas it frequently happens that the goods 
 in respect of which bills of lading purport to be signed have not been laden on 
 board, and it is proper that such bills of lading in the liands of a bond fide holder 
 for value should not be cj^uestioned by the master or other person signing the same 
 on the ground of the goods not having been laden as aforesaid. Be it therefore 
 enacted, &c., as follows : 
 
 1. Every consignee of goods named in a bill of lading, and every endorsee of a Rights under 
 bill of lading to whom the property in the goods therein mentioned shall j)ass, to vest in^con- 
 upon or by reason of such consignment or endorsement, shall have transferred to signee or 
 and vested in him all rights of suit, and be subject to the same liabilities in endorsee, 
 respect of such goods as if the contract contained in the bill of lading had been 
 made with himself. 
 
 3 F
 
 802 
 
 THE PASSENGERS ACT, 1855, 
 
 Not to affect 
 right of stop- 
 page in transitu 
 or "claims for 
 ft-eiglit. 
 
 Bill of lading in 
 lianils of con- 
 Mgnce. &c., con- 
 clusive evidence 
 of the shipment 
 as against 
 master, ifcc. 
 
 Proviso. 
 
 2. Notliing lierein contained, shall prejudice or affect any right of stoppage in 
 transitu, or any right to claim freight against the original sliipper or owner, or any 
 liability of tlie consignee or endorsee liy reason or in consequence of his being 
 snch consignee or endorsee, or of his receipt of the goods by reason or in conse- 
 quence of si\ch consignment or endorsement. 
 
 3. Every bill of lading in the hands of a consignee or endorsee for valuable 
 consideration representing goods to have been shipjied on board a vessel shall be 
 conclusive evidence of such shipment as against the master or other person signing 
 the same, notwithstanding that such goods or some part thereof may not have 
 been so shipped, unless such holder of the bill of lading shall have had actual 
 notice at the time of receiving tlie same that the goods had not been in fact laden 
 on board : Provided, that the master or other person so signing may exonerate 
 himself in respect of such misrepresentation by showing that it ■u-as caused Mdth- 
 out any default on his part, and wholly by the fraud of the shipper, or of the 
 holder, or some person under whom the holder claims. 
 
 No. IX. 
 
 "THE PASSENGERS ACT, 1855." 
 
 18 & 19 Vict. c. 119. 
 
 Prefatory 
 Clan!>es. 
 
 An Act to amend the Law relating to the Carriage of Passengers hj Sea. 
 
 [Utli August, 1855.] 
 Be it therefore 
 
 16th Oct., 1852. 
 
 Whereas it is expedient to amend " The Passengers Act, 1852 
 
 ^ enacted, &c., as follows: 
 
 Commencement 1. On the 1st day of October next, when this Act shall commence and come 
 rweai (^''fonncr "^*" force, "The Passengers Act, 1852," shall be repealed, except so far as the 
 Act except as to saiel Act repeals any former Act or enactment ; and except as to existing passage- 
 existing lia- brokers' licenses, wliicli shall continite in force as mentioned in section 68 of this 
 except as'to -^^t, and except as to any ship wliich shall have cleared out from any colonial 
 an Onier in port under the said Act, and before this Act shall have come into operation in 
 Council dated g^^^.|^ colony ; and except so far as may be necessary for supporting or continuing 
 any proceeding heretofore taken or hereafter to be taken uj^on any bond given 
 under the said Act, or upon any other ci^dl process ; and except as to the recovery 
 and application of any penalty for any offence committed against the said Act 
 before the commencement of this Act ; and except also as to an order in council 
 made by H. ]\I., Avith the advice of her inivj council, on the 16th day of October, 
 1852, in pursuance of the powers given by the 55th section of the said Act, which 
 said order in council shall remain in force tintil altered or revoked by any order in 
 council to be made under the provisions of this Act (a), 
 uiis fl.cu luu ^" ^^^ citing this Act in other Acts of ParKament, or in any instrument, docu- 
 inie^'i proceed- nient, or proceeding, it shall be sufJicient to use the expression " The Passengers 
 ings reference to Act, 1855 ;" and in any process for enforcing the remedies or penalties given or 
 Act by number iu^posed by this Act, it shall be sufficient, A\-ithout specifying more particularly 
 to be "sufficient, the cause of complaint or offence, to refer by number, according to the copies of 
 the Act printed by the Queen's printer, to the section or sections under which the 
 proceeding is taken. 
 
 3. For the purposes of this Act, the following words and expressi(ms, whenever 
 they occur, shall respectively have the following significations, if not inconsistent 
 with the context or subject-matter ; (that is to .say,) words of one number or 
 gender shall inaport both numbers and all genders^ respectively ; the expression 
 
 Short title of 
 this Act ; and 
 
 Definition of 
 terms used la 
 this Act. 
 
 (a) Thi5 section is repealed by Stat. Law Kev. Act, 1875w
 
 18 & 19 VICT. c. 119. 803 
 
 " Her Majesty " .sliall include her heirs and successors ; the expression " Consular 
 Officer " shall signif}' and include H. M.'s consul-general, consul, and vice-consul ; 
 the ex^jression " United Kingdom " shall signify Great Britain and Ireland, and 
 the islands of Guernsey, Jersey, Alderney, Sark, Scilly, and Man ; the expression 
 " Xorth America " shall signify and include the Bermudas, and all ports and 
 places on the eastern coast of the contiiient of North America, or in the islands 
 adjacent or near thereto, oi- in the Gulf of Mexico, north of the tropic of Cancer ; 
 the expression " West Indies " shall signifj^ the West India islands, the Bahamas, 
 British Guiana, and Honduras ; the expression " Governor " shall signify the 
 person who for the time being shall be lawfully administering the government of 
 any British colony in which he may be acting ; the expression " Statute Adult " 
 shall signify any person of the age of 12 years or upwards, or two persons between 
 the ages of 1 and 12 years ; the expression "Passage" shall include all passages 
 excejjt cabin xsassages ; the exjiression " Passengers " shall include all passengers 
 excejjt cabin passengers, and except labourers under indenture to the Hudson's 
 Bay Company, and their families, conveyed in ships the property of or chartered 
 by the said company, and no persons shall be deemed cabin passengers imless the 
 space allotted to their exclusive use shaU be in the proportion of at least 36 
 clear superficial feet to each statute adult, nor unless they shall be messed thi'ough- 
 out the voyage at the same table with the master or first officer of the ship, nor 
 unless the fare contracted to be paid by them respectively shall be in the propor- 
 tion of at least '30s. for every week of the length of the voyage as com- 
 puted under the pro\dsions of this Act for sailing vessels proceeding from the 
 XJ. K. to any place south of the equator, and of 20s. for such vessels 
 proceeding to any place north of the equator, nor unless they shall have been fur- 
 nished with a duly signed contract ticket according to the form in Schedule (K.) 
 of this Act; the expression "Upper Passenger Deck" shall signify and include 
 the deck immediately beneath the upper deck, or the poop or round house and 
 deck house when the number of passengers and cabin passengers carried in such 
 poop, round house, or deck house shall exceed one-third of the total numljer of 
 passengers which such ship can lawfully carry on the deck next below ; the ex- 
 pression " Lower Passenger Deck," the deck next iDeneath the upper passenger 
 deck, not being an orlop deck ; the expression " Ship " shall signify any descrip- 
 tion of sea-going vessel, whether British or foreign ; [the expression " Passenger 
 Ship " shall signify every description of such ship carrying upon any voyage to 
 which the provisions of this Act shall extend more tlian 3U passengers, or a greater 
 number of passengers than in the proportion of one statute adult to every 50 tons 
 of the registered tonnage of such ship if propelled by sails, or of one statute adult 
 to every 25 tons if jDropelled by steam] ; (b) the expression " Master " shall signify 
 the person who shall be borne on the ship's articles as master, or who, other than 
 a pilot, shall for the time being be in charge or command of any such ship or 
 passenger ship ; and the expression " Emigrant Kunner " shall signify every 
 person other than a licensed passage-broker or his bond fide salaried clerk, who 
 within any port or place of shipping, or within five miles of the outer boundaries 
 thereof, for hire or reward, or the expectation thereof, shall directly or indirectly 
 conduct, solicit, influence, or recommend any intending emigrant to or on behalf 
 of any passage-broker, owner, charterer, or master of a ship, lodging house or 
 tavern br shop keeper, money changer, or other dealer or chapman, for any purpose 
 connected with the preparations or arrangements for a passage, or shall give or 
 pretend to give to such intending emigrant any information or assistance in any 
 way relating to emigration. 
 
 4. This Act shall extend to every passenger ship proceeding on any voyage from To what vessels 
 the U. K. to any place out of Europe, and not being within the i\Iediterranean ^" ^ extends "^'"^ 
 Sea, and on every colonial voyage as herein-after described, and in the j^articulars 
 mentioned or referred to in sections 100, 101, and 102, to every ship bringing 
 passengers into the U. K. from any place out of Evu-ope, and not being within the 
 Mediterranean Sea ; but shall not extend to any of H. M.'s ships of war, nor to 
 any sliips in the service of the commissioners for executing the office of lord high 
 
 (b) Tlio iMirt witlain brackets is repealed by tlie 26 & 27 Vict. c. 51, s. 3. 
 
 •> u 9
 
 804 
 
 THE TASSENGERS ACT, 1855, 
 
 Commissioners 
 of cmisjration to 
 carry this Act 
 iiitocxecutiun. 
 
 admiral of the U. K. [The rest of the section is repealed by Statute Law 
 Kevision Act, 1875 ; see 26 & 27 Vict. c. 51, s. 4, j^ost.] 
 5. [Repealed by Statute Law Revision Act, 1875.] 
 
 6 ((()• And Avhereas by a warrant under her Majesty's sign manual, bearing date 
 on the twenty-seventh day of November, one tliousand eight hundred and forty- 
 seven, her Majesty was pleased to appoint certain persons therein named under 
 the style of " The Colonial Land and Emigration Commissioners," to be, during 
 her Majesty's pleasure, commissioners in the United Kingdom for the sale of the 
 waste land's of the Crown of Her ^lajesty's colonies, and for superintending the 
 emigration of the poorer classes of Her Majesty's sttbjects to such colonies: and 
 Avheieas it is expedient that such commissioners should be empowered to carry 
 this Act into execution : be it therefore enacted that the said commissioners, and 
 tliek successors for the time lieing, sliall, and they are hereby empowered to carry 
 this Act into execution ; and that for all legal and othe]- ptirposes it shall be 
 sufficient to describe sucli conmiissioners by the style of " The Emigration Com- 
 missioners." 
 
 7 («). Tlie said emigration commissioners for the time being may sue and be 
 sued in the name of their secretary, or of any one of sucli commissioners for the 
 time being, and legal or e(|uitable proceedings taken by or against the said com- 
 missioner.s in the name of any one of them or of their secretary, shall not abate nor 
 be discontinued by the death or removal of such secretary or commissioner, but 
 the secretary for the time being, or any one of such commissioners, shall always be 
 deemed to be the plaintiff or defendant (as the case may be) in any such proceed- 
 ings : provided always, that the said commissioners (b) and their secretary, and the 
 eniioration officers hereinafter mentioned respectively, shall in no case be person- 
 allvliable, nor shall the private estate and effects of any of them be liable, for the 
 payment of any monies or costs or otherwise in respect of any contract made or 
 hereafter to be made by them or any of them, or in respect of any legal or eqtti- 
 table proceedings taken against tliem or any of them, or for any act, deed, or 
 matter done or executed by them or any of them in their or his official capacity 
 and on the public ser^dce. 
 
 8. In the U. K. the said comniissioners (h) acting under the sanction of one of 
 H. M.'s principal secretaries of state, and, in H. M.'s possessions abroad the respective 
 governors thereof may from time to time appoint, and the said commissioners {h) 
 and governors may at pleasure from time to time remove such emigration officers 
 and assistant emigration officers as they may respectively think necessary, for the 
 purpose of carrying this Act into execution, under the direction of the said com- 
 missioners (h) or governois, as the case may be : provided nevertheless, that all 
 existing appointments of emigration officers or immigration agents and of their 
 assistants, as well in the U. K. as in H. M.'s possessions abroad, shall continue in 
 force under this Act until duly revoked. 
 
 9. All powers, functions, and dttties to be exercised or performed by any such 
 emigTation officer may be exercised and performed respectively liy his assistant, 
 
 _ or, at any port where there shall be no such emigration olhcer or assistant, 
 
 ins assistant" or or in their absence, by the chief officer of customs for the time being at such 
 by officer of p^^,^_ ° 
 
 10. The master of every shiji, whether a " Passenger Ship " or otherwise fitting 
 or intended for the carriage of passengers, or which shall carry passengers upon 
 any voyage to which this Act extends, shall afford to such emigration officer as 
 aforesaid at any port or place in H. ^M.'s dominions, and, in the case of British 
 ships, to H. M.'s consular officer at any foreign port or place at which such ship 
 shall be or arrive, every facility for inspecting such ship, and for communicating 
 with the passengers, and for ascertaining that the provisions of this Act, so far as 
 the same may be applicable to such ships, have been duly complied with ; the 
 master of any ship who shall omit or fail to comply Avith any of the requirements 
 of this section shall be liable to a penalt}' not exceeding .£50. 
 
 Emigration 
 commissioners 
 may sue and be 
 sued in tlie 
 name of their 
 sccrctiU}', &c. 
 
 Commissioners, 
 &c., exempt 
 from liability. 
 
 Emisri'ation 
 officers and 
 assistants to act 
 under the com- 
 missioners, &.C., 
 but existing 
 appointments to 
 continue tmtil 
 j'cvoked. 
 
 Duties of 
 cmigi'ation 
 officer may bo 
 performed by 
 
 customs. 
 
 Facilities to be 
 given to the 
 proper officers 
 for the inspec- 
 tion of all ships 
 fitting for 
 passengers. 
 
 Penalty on 
 master refusin; 
 to comply, &c. 
 
 (a) These sections are repealed except, &c., by 
 35 & 36 Yict. c. 73, s. 5, post. 
 
 a>) Now Board of Trade ; sec 35 & 36 Yict , 
 c. 73, s. 5, 2^ost.
 
 18 & 19 VICT. 0. 119. 805 
 
 11. No sliip fitted or intended for the carriage of passengers as a "Passenger Arrangments 
 Ship " shall clear out or proceed to sea until the master thereof shall have obtained ■f^'' *^''"i^- 
 from the emigration ofiicer at the port of clearance a certificate of clearance under No passenger 
 his hand that all the recpiirements of tliis Act, so far as the same can be complied ^'^Jj^^^f^f^J.'; 
 with, before the departure of such ship, have l^een duly complied with, and that tificate from 
 such ship is, in his opinion, seaworthy, in safe trim, and in all respects fit for her emigration 
 intended voyage, and that her passengers and crew are in a fit state to proceed, ^J^j';^;;^^*'^' "^"' 
 nor until the master shall have joined in executing such bond to the Crown as given to tlio 
 required by the 63rd section of this Act : provided, that if such emigration Crown (d). 
 officer shall refuse to grant such certificate, and the owner or charterer of such 
 
 ship shall appeal in writing to the emigration commissioners (c), such commis- 
 sioners (c) shall appoint any other two emigration officers, or any two competent 
 persons, at the expense of the appellant, to examine into the matter, and if tlie 
 persons so appointed shall grant a certificate under their joint hands to the purport 
 hereinbefore required, such" certificate shall be held to be of the same effect as if 
 granted by the emigration officer of the jiort of clearance. 
 
 12. [Repealed by 26 & 27 Vict. c. 51, s. 12, except, &c.] 
 
 13. No ship shall carry passengers or cabin passengers on more than two decks ; se„gersmay 
 provided, that cabin passengers in a proportion not exceeding one cabin passenger be carried. - 
 for every 100 tons of the ship's registered tonnage, or sick persons placed in a 
 hospital, as liereinafter provided, may be carried in a poop or deck house, not- 
 withstanding that passengers are carried on two other decks, and if passengers 
 
 are carried under the poop or in any round house or deck house, such poop, round 
 liouse, or deck house sliall be pro2)erly built and secured to the satisfaction of the 
 emigration officer at the port of clearance : for any breach of this enactment the 
 master of the ship shall for each offence be liable to a penalty not exceeding £500 
 nor less than J20 sterling, 
 
 14. For determining the number of passengers to be carried in any " Passenger Rule for deter- 
 Bhip " the following rules shall be observed : mmbfr*of° 
 
 (1.) No ship propelled by sails only shall carry a greater number of persons passengers to 
 (including every individual on l)oard) than in the proportion of one statute be carried, 
 adult to every two tons of her registered tomiage : [Repealed by 26 & 27 Tonnage clicck. 
 Vict. c. 51, s. 5.] 
 
 (2.) No ship shall carry under the poop, or in the round house or deck house, Space clicck. 
 or on the " Upper Passenger Deck," a greater number of passengers than 
 in the proportion of one statute adult to every 15 clear superficial feet of 
 deck allotted to their use : 
 
 (3.) No ship shall carry on her lower passenger deck a greater number of pas- 
 sengers than in tlie proportion of one statute adult to every 18 clear 
 superficial feet of deck allotted to their use': provided, nevertheless, that if 
 the height l)etween such lower passenger deck and the deck immediately 
 above it shall be less than 7 feet, or if the apertures (exclusive of side 
 scuttles) through which light and air shall be admitted together to the 
 lower passenger deck shall be less in size than in the proportion of three 
 square feet to every 100 superficial feet of the lower passenger deck, no 
 greater number of passengers shall be carried on such deck than in the 
 proportion of one statute adult to every 25 clear supei-ficial feet thereof : 
 
 (4.) No ship, whatever be her tonnage or superficial space of " Passenger Decks," 
 shall carry a greater number of passengers on the whole than in the pro- 
 •portion of one statute adult to every five superficial feet, clear for exer- 
 cise, on the upper deck or poop, or (if secured and fitted on the top with 
 a railing or guard to the satisfaction of the emigration officer at the port 
 of clearance) on any round house or deck house : 
 
 (.").) In the measurement of the passenger decks, poop, round house, or deck 
 house, the space for the hospital and that occupied by such portion of the 
 personal luggage of the passengers as the emigration officer may permit 
 to be carried there shall be included : 
 If there shall be on board of any ship at or after the time of clearance a greater penalty. 
 
 (c) Sec ante, p. 804, note (!)). 
 
 ((() See 26 & 27 Vict. c. 51, a, n,imi; 35 & 36 Vict. c. 73, ,s. 7, post; 39 & 4U Vict. c.80, post,
 
 806 
 
 THE PASSENGEES ACT, 1855, 
 
 Kothing to 
 extend to 
 repeal 16 & 17 
 Vict. c. 6S. 
 
 Pasfieneors 
 lists to be 
 delivered in 
 dinilicate by 
 the master 
 before clear- 
 ance (a). 
 
 Lists of 
 )iassensrer3 
 embarked 
 after clearance 
 to be delivered 
 by master (o J. 
 
 number, eitlier of persons or passengers (except by Lirths at sea), than in the pro- 
 jiortions respectively hereinbefore mentioned, the master of such ship shall be liable 
 to a penalty not exceeding J20 nor less than £o sterling for each passenger or 
 person constituting such excess. 
 
 15. Provided, nevertheless, that nothing in this Act contained shall extend to 
 repeal or vary the Act 16 & 17 Yict. c. 84, intituled " An Act to amend the 
 Passengers Act, 1852, so far as relates to the passages of natives of Asia or 
 Africa, and also passages between the island of Ceylon and certain parts of the East 
 Indies." 
 
 16. The master of every ship, whether a " Passenger Ship" or otherwise, carrj*- 
 ing passengers on any voyage to which this Act extends, shall, before demanding 
 a clearance for such ship, sign two lists, made out according to the form contained 
 in Schedule (B.) hereto annexed, correctly setting forth in the manner therein 
 directed the name and other particulars of the ship, and of every passenger on 
 board thereof ; and the said lists, when countersigned by the emigration officer, 
 where there is one at the port, shall be delivered by the master to the officer of the 
 customs from whom a clearance of the said ship shall be demanded, and such officer 
 shall thereupon also countersign and return to the said master one of such lists, 
 hereinafter called " the ;\raster's List ; "' [and the said master shall note in writing 
 on such last -mentioned list, and on any additional lists to be made out as next 
 hereinafter promled, the date and supposetl cause of death of any passenger who 
 may die, and the date of birth and sex of any child Avho may be born on the 
 voyage, and shall exhibit such last-mentioned list, Avith any additions which may 
 from time to time be made thereto, as hereinafter directed, to the chief officer 
 of customs at any port or place in H. M.'s possessions, or to H. M.'s consular officer 
 at any foreign port at which the said passengers or any of them shall be landed, 
 and shall deposit the same with such chief officer of customs or such consular 
 officer, as the case may be, at the iinal port or place of discharge, and such officer 
 of customs or consular officer shall thereupon forthwith transmit the particulars 
 respecting any passenger Avho may die or of any child who may be born on the 
 voyage to the registrar general of births, deaths, and marriages in England, who 
 shall file the same, and enter a copy thereof under his hand, in the " Marine 
 Eegister Book," which entry shall be dealt with and be of the same value as evidence 
 as any other entry made in such book under the provisions of the Act 6 & 7 Vict, 
 intituled, " An Act for registering births, deaths, and marriages in England :"] {b) 
 in case of noncomi^liance with any of the requirements of this section on the jiart 
 of the master, or if such lists shall be "nilfully false, the master shall for each 
 ofleiice be liable to a penalty not exceeding £100 nor less than £o sterling. 
 
 17. If at any time after such lists shall have been signed and delivered as afore- 
 said, any additional passenger shall be taken on board, in every such case the 
 master shall, according to the form aforesaid, add to " the Master's List " tlie names 
 and other particulars of every such additional passenger, and shall also sign a 
 separate list, made out according to the form aforesaid, containing the names and 
 other particulars of every such additional passenger, and such last-mentioneel list, 
 Avhen countersigned by the emigration officer, where there is one at the j^ort, shall, 
 together vdih " the Master's List" to which such addition shall have been made, be 
 delivered to the chief officer oi customs as aforesaid, and thereujion such officer 
 shall countersign " the Master's List," and shall return the same to the said master, 
 and shall retain the separate list, and so on in like manner whenever any addi- 
 tional passenger or passengers may be taken on board ; or if no officer of customs 
 shall he stationed at the port or place where such adtlitional passenger or pas- 
 sengers may be taken on board, the said lists shaU be delivered to the officer of 
 customs at the next port or place at which such vessel sliall touch or arrive, and 
 where any such officer shall lie stationed, to be dealt with as hereinbefore men- 
 ticjued : ^irovided that, when any additional passengers shall be taken on board, 
 the master shall obtain a fresh certificate from tlie emigration officer of the port 
 that all the requirements of this Act have been duly comi^lied with before the ship 
 
 (fl) See 26 & 37 Vict. c. 61; s. 6, poet. 
 
 (b) The part ill brnclccis Is repealed by 37 & 38 
 Vict. Ci 88, s. 37 ; antei p. 607 (n),
 
 18 & 19 VICT. c. 119. 807 
 
 shall proceed to sea ; in case of noncompliance witli any of the requirements of Penalty on 
 this section, the master of such sliip shall, for each offence, be liable to a penalty noucompiiance. 
 not exceeding ^50 nor less than £b sterling. 
 
 18. If any person shall be found on board any passenger ship with intent to Penalty on 
 obtain a passage tlierein without the consent of the owner, charterer, or master ouboani "ships 
 thereof, such person, and every person aiding and abetting him in such fi'audulent without con- 
 intent, shall respectively be liable to a penalty not exceeding £5, (c) and in default q^q^.^ ^g 
 
 of payment to imprisonment, witli or without hard labom', for a period not exceed- 
 ing 3 calendar months ; and such person so foitnd on board may be taken before 
 any justice of the peace, without warrant, and such justice may siunmarily hear the 
 case, and on proof of the offence convict such offender as aforesaid, 
 
 19. No " Passenger Ship" shall clear out or proceed to sea unless she shall have All passenger 
 been surveyed, under the direction of the emigration officer at the port of clear- ^'"P^ ^''j'^ 
 ance, but at the expense of the owner or charterer thereof, by two or more com- before cie;u-- 
 petent surveyors, to l)e appointed by the said emigration commissioners (e) for ins out (t/}. 
 each port at which there may be an emigration officer, and for other ports by the 
 commissioners of customs, nor unless it shall be reported liy siich surveyors that 
 
 such " Passenger Ship" is in their opinion seaworthj^, and fit for her intended 
 
 voyage. The survey shall be made before any part of the cargo is taken on board, 
 
 except so much as may be necessary for ballasting the sliip, and such portion of 
 
 cargo if laden on board shall be shifted, if required by the emignration officer or 
 
 surveyors, so as to expose to view successively every part of the frame of the ship. 
 
 In case of noncompliance with any of the requirements' of this section, the owner, penalty on 
 
 charterer, or master of the ship, or any of tliem, shall for each oftence be liable to noncompliance. 
 
 a penalty not exceeding ^100 nor less than £o sterling : provided always, that in 
 
 case any " Passenger Ship " shall be reported by any such surveyors not to be sea- power to 
 
 Avorthy, or not fit for her said intended voyage, the owner or charterer, if he shall owners to 
 
 think fit, may require, by writing under his liand, the emigration officer, or in his sS-'veyo^-^s"'^'' 
 
 absence the chief officer of customs, to appoint three other competent suiweyors, of report of 
 
 whom two at least shall be sliip-\\Tights, to siu'vey the said ship, at the expense of geaworthv^'^^'^" 
 
 the said owner or charterer ; and the said officer shall thereupon appoint such 
 
 surveyors, Avho shall survey the said ship, and if they vshall, by an unanimous 
 
 report under their hands (but not otherwise), declare the said sliip to be seaworthy, 
 
 and fit for her intended voyage, the said ship shall then, for the purposes of this 
 
 Act, be deemed seaworthy for such voyage (/). 
 
 20. In every " Passenger Ship" the beams supporting the " Passenger Decks " As to the con- 
 shall form part of the permanent structure of the ship ; they shall be of adequate ^traction of 
 strength, in the judgment of tlie emigration officer at the port of clearance, and decks^"''^ 
 shall be iumly secured to the sliip to his satisfaction. The " Passenger Decks" 
 
 shall be at least one inch and a-half in thickness, and shall be laid and firmly fas- 
 tened upon the beams continuously, from side to side of the compartment in which 
 the passengers are berthed. Tlie height between that part of any deck on whicli 
 passengers are carried and the deck iimnediately above it shall not be less than 6 
 feet. In case of noncompliance Avitli any of the requirements of this section, the 
 owner, charterer, or master of tlie ship, or any of them, shall for each offence be 
 liable to a penalty not exceeding £50 nor less than £o sterling. 
 
 21. There shall not be more than two tiers of berths on any one deck in any Arraugemeut 
 " Passenger Ship," and the interval between the floor of the berths and the deck P"^. j"f'° ^^ 
 iumiediately beneath them shall not be less than 6 inches, nor the interval between 
 
 each tier of berths and between the uppermost tier and the deck above it less than 
 2 feet six inches ; the berths shall be securely constructed, and of dimensions not 
 less than 6 feet in length and 18 inches in Avidth for each statute adult, and shall 
 be sufficient in number for the proper accommodation of all the passengers con- 
 tained in the lists of passengers hereinbefore required to be delivered by the master 
 of the ship. No part of any Ijertli shall be placed Avithin 9 inches of any Avater- 
 closet erected in the betAveen-decks. In case of noncompliance with any of the 
 recj^uirements of this section, the owner, charterer, or master of the ship, or any of 
 
 (r) Sec 2G &; 27 Vict. c. 51, s. 7, post (f) As to fee for sui'vey, see 36 & 37 Vict. c. 85, 
 
 ((0 See 3S) & 40 Vict. c. 80, i-s. 7. 14, 18. post. s. 30 ; 35 & 36 Vict. c. 73. s, 15, 
 
 (e) Kow Board of Trade (85 & 36 A'ict. c. 73, 
 E. 5,2Wst),
 
 808 
 
 THE PASSENGEES ACT, 1855, 
 
 Single men 
 to be berthed 
 in a separate 
 compartment. 
 
 As to number 
 and sexes in 
 one berth. 
 
 Penalty. 
 
 Berths not to 
 be removed till 
 passengers 
 landed. 
 
 Space to be 
 allotted as an 
 hospital. 
 
 reualiy. 
 
 Eegiilations 
 as to construc- 
 tion of privies. 
 
 As to light and 
 ventilation. 
 
 Penalty on 
 uoneompliancc. 
 
 Kegulations 
 as to the 
 carrying of 
 boats. 
 
 them, sliall for each offence be Hable to a penalty not exceeding J50 nor less than 
 £b sterling. 
 
 22. In every " Passenger Ship " all the male passengers of the age of fourteen 
 years and upwards, -who shall not occupy berths ■with their -wives shall, to the 
 satisfaction of the emigration olficer at the port of clearance, be berthed in the fore 
 part of the ship, in a compartment di\T.ded off from the space appropriated to the 
 other passengers, by a substantial and well-secured bullvhead, ■s^'ithout oiDening 
 into, or communication with, any adjoining passenger berth, or in separate rooms 
 if the ship be fitted -with enclosed berths ; not more than one passenger, unless 
 husband and wife, or females or children under 12 years of age, shall be placed in 
 or occupy the same berth. In case of noncompliance with any of the requirements 
 of this section, the owner, 'charterer, or master of the ship, or any of them, shall 
 for each offence be liable to a penalty not exceeding £50 nor less than £b sterling. 
 
 23. No berths in a " Passenger Ship " occupied by passengers dirring the voyage 
 shall be taken down until 48 hours after the arrival of such ship at the port of 
 final discharge, unless all the passengers shall have voluntarily quitted the ship 
 before the expiration of that time. In cases of noncompliance with any of the 
 requirements of this section, the master of such ship shall be liable for each offence 
 to a penalty not exceeding £50 nor less than £b sterling. 
 
 24. In every "passenger ship" there shall be a sufficient space properly divided 
 off to the satisfaction of the emigration officer at the port of clearance, to be used 
 exclusively as a hospital or hospitals for the passengers ; this space shall be under 
 the poop, or in the round house, or in any deck house, which shall be properly 
 built and secured to the satisfaction of such emigi'ation officer, or on the upper 
 passenger deck, and not elsewhere, and shall, in no case, be less than 18 clear 
 superficial feet for ever}' 50 passengers which the ship shall carry. Such liospitals 
 shall be fitted with bed-places, and supplied witli proper beds, bedding, and 
 utensils, to the satisfaction of the emigi-ation officer at the port of clearance, and 
 throughout the voyage kept so fitted and sitpplied. In case of noncompliance with 
 any of the requirements of this section, the owner, charterer, or master of the ship 
 shall for each oflence be liable to a penalty not exceeding £50 nor less than £5 
 sterling. 
 
 25. No " Passenger Ship" shall clear out or proceed to sea unless fitted, to the 
 satisfaction of the emigration officer at the port of clearance, with at least two 
 privies, and A\'ith two additional privies on deck for every 100 passengers on 
 board, and in ships carrying as many as 50 female passengers, with at least two 
 water-closets imder the poop, or elsewhere on the upper deck, to the satisfaction 
 of such emigration officer, for the exclusive use of the women and yoimg children ; 
 all of which pri^ies and water-closets shall be firmly constructed and maintained 
 in a serviceable and cleanly condition tliroughout the voyage, and shall not be 
 taken down until the expiration of 48 liom-s after the arrival of the ship 
 at the port of final dischai'ge, imless all the passengers sooner quit the ship ; pro- 
 ^'ided that such privies shall be placed in equal numbers on each side of the ship, 
 and need not in any case exceed 12 in number. In case of noncompliance with 
 any of the requirements of this section, the master shall be liable to a penalty for 
 each offence not exceeding £50 nor less than £5 sterling, 
 
 26. No " Passenger Ship " shall clear out or proceed to sea without such provi- 
 sions for aftbrding light and aii' to the passenger decks as the circumstances of the 
 case may, in the judgment of the emigration officer at the port of clearance, 
 require ; nor if there are as many as 100 passengers on board, without ha-\ang an 
 adequate and proper ventilating apparatus, to be approved by stich emigration 
 officer and fitted to his satisfaction ; the passengers shall, moreoA'er, have the free 
 and imimpeded iise of the whole of each hatchway situated over the space appro- 
 priated to their use, and over each such hatchway there shall be erected such a 
 booby-hatch or other substantial covering as shall, in the opinion of such emigra- 
 tion officer, aftbrd the greatest amount of light and air, and of protection from wet, 
 as the case will admit. In case of noncompliance with any of the requirements of 
 this section, the owner, charterer, or master of tlie ship, or any of them, shall for 
 each offence be liable to a penalty not exceeding £50 nor less than £20. 
 
 27. Eveiy " passenger ship " shall caiTy, throughoitt the voyage, a number of 
 boats according to the following scale ; (that is to say,)
 
 18 & 19 VICT. c. 119. 
 
 809 
 
 2 boats for every ship of less tlian 200 tons : 
 
 3 boats for every ship of 200, and less than 400 tons : 
 
 4 boats for every sliip of 400, and less than 600 tons : 
 
 5 boats for every ship of 600, and less than 1,000 tons : 
 
 6 boats for every sliip of 1,000, and less tlian 1,500 tons : 
 
 7 boats for every ship of 1,500 tons and npwards : provided that no "pas- 
 senger ship" shall be rec^uired to carry a greater number of boats than are 
 sufficient, in the judgment of the emigration officer at the port of clearance, 
 to carry all the persons on board of such ship. 
 
 One of such l^oats shall in all cases be a long boat, and one shall be a properly Of life boats 
 
 fitted life boat, wliich shall be carried in such a manner as to be, in the opinion of 
 
 the emigration officer, most available for innnediate service : each of stich boats 
 
 shall be of a suital)le size and descrij^tion, to be approved (a) by the emigiation 
 
 officer at the port of clearance, and shall be seaworthy, and properly supplied with 
 
 all rerpiisites, and kept clear at all times for immediate use at sea : there shall 
 
 likewise be on board each " Passenger Ship," if proceeding to any place to the 
 
 southward of the equator at least two chronometers, and if to any place to 
 
 the northward of the equator at least one chronometer, and on Ijoard of all 
 
 " Passenger Ships " at least 3 steering and one azimuth compass, 4 properly fitted 
 
 life buoys, kej^t ready at all times for immediate use, and some adequate means, 
 
 (n) The following is taken from the Memorandum ou the Passengers Acts issued by the Board of 
 Trade in 1875. 
 A Scale showing the minimum number and size of boats which the cmigi-ation officers in the U. K. 
 
 will be iirepared to pass for passenger ships in the exercise of the discretion vested in them by the 
 
 27th section of the " Passengers Act, 1855." 
 
 
 No. of 
 
 Boats 
 
 not less 
 
 than 
 
 Sailing Vessels. 
 
 Steam Vessels. 
 
 Registered TonUagc of Ship. 
 
 Minimum 
 Cubic 
 
 Contents 
 of Life 
 Boats. 
 
 Minimum 
 
 Cubic 
 Contents of 
 
 all the 
 
 Boats of the 
 
 Ship. 
 
 Minimum 
 C'ul)ic 
 
 Contents 
 of Life 
 Boats. 
 
 Minimum 
 
 Cubic 
 Contents of 
 
 all the 
 
 Boats of the 
 
 Ship. 
 
 Less than 200 tons 
 200 and less than 400 tons - 
 400 and less than 600 tons - 
 600 and less than 800 tons - 
 800 and less than 1,000 tons - 
 1,000 and less than 1,250 tons 
 1,250 and less than 1,600 tons 
 1,500 tons and upwards 
 
 2 
 3 
 4 
 5 
 5 
 6 
 6 
 7 
 
 Feet. 
 
 150 
 
 200 
 
 250 
 
 280 
 
 400 
 
 900 
 
 900 
 
 928 
 
 Feet. 
 394 
 712 
 1,205 
 1,730 
 2,045 
 2.545 
 3,000 
 3,600 
 
 Feet. 
 
 230 
 
 302 
 
 330 
 
 330 
 
 330 
 
 900 
 
 900 
 
 928 
 
 Feet. 
 614 
 
 1,095 
 1,462 
 1,730 
 2.045 
 2,545 
 3,000 
 3,600 
 
 N.B.— The length over all X the extreme breadth X the inside depth amid.'ihips is to be considered 
 as the cubic contents. 
 
 In vessels of 200 tons and upwards no boat of 
 less than 150 feet of cubical contents is to be 
 Counted in the above number. 
 
 In vessels of 600 tons and upwards two of the 
 boats should be life boats. They sliould be as 
 large as can be conveniently carried outboard, 
 and built whaleboat fashion, both ends alike, and 
 the ends to a limited extent inclosed and made 
 air-tight. They should have a sheer of aoiiut 
 three-fourths of an inch to the foot, and be fitted 
 along the sides and under the thwarts with strong 
 air-tight tubes of about 10 inches diameter, 
 diminishing to 7 or 6 incJies at the ends, and of 
 convenient lengths, say from 2 to 3 feet each. 
 Life lines should be fitted along the sides, and 
 6 life-belts for the crew should form part of tbo 
 equipment of each life boat. The life Doat should 
 be carried at the quarters. 
 
 The boat fitted as a long-boat is to be supplied 
 with mast and sail of any rig that may be 
 pi'eferred. 
 
 Every boat must be seaworthy and provided 
 with painter, oars, boat-hooks, thole pins, plug 
 rudder and tiller, all of which are to be properly 
 secured in the boats. 
 
 All the boats to be kept in good order, clear, 
 and ready for instant use. 
 
 No greater number of Ijoats need be taken than 
 are sufficient, in the judgment of the emigration 
 officer at the port of clearance, to carry all the 
 crew and passengers on hoard. 15 cubic feet of 
 boat may be taken as sufficient for one adult. 
 Not more than 40 adults should be allowed for 
 any one boat. 
 
 N.B.—The rults prescribed vi, Cir. 730, Appen- 
 dix 33 (in above memorandum), are in future to 
 be iibscrrril in rcjaril tn titc iiiensurement of the 
 ritliir nnili'iits of boats awl the ilescriptiim if tifc 
 boats and life Uuujs to he carried in pussenycr 
 ships.
 
 810 
 
 THE PASSENGEES ACT, 1855, 
 
 And of life 
 buoys, aucliovs, 
 and lire engines 
 &c. (a). 
 
 Rogulations 
 as to carrying 
 an efficient 
 crew. 
 
 Certain articles 
 prohibited as 
 cargo and 
 ballast. ((0 
 
 Stowage of 
 cargo, stores, 
 and luggiige 
 to be approved 
 by emigration 
 officer. 
 
 Computation of 
 voyages. 
 
 to be approved by the emigration officer at tlie port of clearance, of making signals 
 by night and in fogs ; also a fire engine in x^roper working order, and of such 
 description and power, and either with or without such other apparatus for extin- 
 guisliing fii'e as such officer may approve ; and not less than 3 bower anchors of 
 such weight, and ^nth cables of such length, size, and material, as in the judgment 
 of such emigration officer shall be sufficient for the size of the sliip. In case of 
 noncompliance with any of the rec|uirements of this section, the master of the ship 
 shall, for each offence, be liable to a penalty not exceeding £50 nor less than £o 
 sterling. 
 
 28. Every " Passenger Ship " shall be manned with an efficient crew for lier 
 intended voyage, to the satisfaction of the emigration officer from whom a clear- 
 ance of such sliip may be demanded, and the strength of the crew shall not be 
 diminished, nor any of the men changed when once passed by such emigration 
 officer, without his consent in •\mting, or that of the shipping master (b) of the 
 port of clearance, as required by the laws then in force regulating the shipphag of 
 seamen on board merchant vessels. Where the consent of the sliipping master (/*) 
 is obtained, it shall, withui 24 hours thereafter, be lodged with such emigration 
 officer. In case of noncompliance MT.th any of the requirements of this section, 
 the master of the ship shall for each offence be liable to a penalty not exceeding 
 ^50 : provided, that if the emigration officer shall consider the crew inefficient, and 
 the owner or charterer of the ship sliall thereupon appeal in ■m'iting to the said 
 emigration commissioners (c), such commissioners shall, at the expense of the 
 appellant, appoint two other emigration officers or two competent persons to 
 examine into the matter, and the unanimous opinion of the persons so appointed, 
 expressed under their hands, shall be conclusive on the ]3oiat. 
 
 29. No "Passenger Sliip" shall clear out to proceed to sea if there shall be on 
 board, as cargo, horses, cattle, gunpowder, vitriol, lucifer matches, guano, or green 
 hides, nor if there shall be on board any other article or number of articles, 
 wliether as cargo or ballast, whicli by reason of the natiu'e or quantity or mode 
 of stowage thereof shall, either singly or collectively, be deemed by the emigra- 
 tion officer at the port of clearance likely to endanger the health or lives of the 
 passengers or the safety of the ship : no part of the cargo, or of the passengers' 
 luggage, or of the provisions, water, or stores, whether for the use of the pas- 
 sengers or of the crew, shall be carried on the upper deck or on the " Passenger 
 Decks," unless in the ophiion of such emigration officer it shall be so placed as 
 not to impede light or ventilation, nor interfere with the comfort of the passengers ; 
 nor unless the same be stowed and secured to the satisfaction of such emigration 
 officer, and the space occupied thereby or rendered, in the 02^iuion of such officer, 
 unavailable for the accommodation of the passengers, shall (unless occupied by 
 passengers' luggage) be deducted in calculating the space by which, under the 
 provisions of this Act, the number of passengers is regulated. In case of non- 
 compliance with any of the requirements of this section, the owner, charterer, 
 or master, or any of them, shall for each offence be liable to a penalty not exceed- 
 ing £'300 nor less than ^5 sterling. 
 
 30. For the purposes of this Act, the length of the voyage for a "Passenger Ship" 
 proceeding from the U. K. to the under-mentioned places respectively shall be 
 determined by the following Scale ; (that is to say,) 
 
 (a) See 39 & 40 Vict. c. SO, s. 21, posf. 
 (&) Xow a superintendent of a nicrcantilG 
 maiine office ; see 25 &. 2(i Vict. c. 63, s. 15, jwsf. 
 
 (c) Now Board of Trade ; see 35 & 36 Vict. 
 c. 73, s. 6, j^ost. 
 
 (d) See 26 & 27 Vict. e. 51, s. 8, post. By 33 & 34 
 Vict. c. 95, s. 3, after reciting tlie above section, 
 enacts that any one of Her Majesty's principal 
 secretaries of state may, by order under his hand, 
 authorise the carriage as cargo in any passenger 
 ship (subject to such conditions and directions as 
 may be specified in the order) of naval and mili- 
 tary stores for the public senice. and sucli stores 
 may, notwithstanding anything contained iu the 
 lirincipal Act (the above Act), be carried accord- 
 ingly in such passenger ship. 
 
 Such order shall be addressed to the emigra- 
 tion officer or person performing the duties of 
 emigration officer at the port of clearance, and 
 shall be by him countersigned, and delivered to 
 the imister of the passenger ship to which it 
 refers, and shall be delivered up by the master to 
 the chief officer of customs at the port where the 
 stores are discharged. 
 
 The master shall comply with all the con- 
 diticus aud directions specified in the order, and 
 non-compliance therewith shall be deemed non- 
 compliance with the requirements of the said 
 section 29 of the principal Act.
 
 18 & 19 VICT. c. 119. 
 
 811 
 
 
 If the ship be 
 
 If tlie ship be 
 
 
 propelled by 
 
 propelled either 
 
 
 sails alone, 
 
 wholly or in aid 
 
 
 or by steam 
 
 of sails by steam 
 
 
 jwwer not 
 
 engines of not 
 
 
 sufficient 
 
 less power than 
 
 
 without the 
 
 sufficient, with- 
 
 
 aid of sails 
 
 out the aid of 
 
 
 to propel the 
 
 sails, to propel 
 
 
 ship after the 
 
 tlie ship after 
 
 
 rate of five 
 
 the rate of five 
 
 
 statute miles 
 
 statute miles an 
 
 
 an hour. 
 
 hour. 
 
 
 Days. 
 
 Days. 
 
 To Nortk America (c) (except the West Coast 
 
 
 
 tliereof) : — 
 
 
 
 For s]ii]33 clearing out between the 16th day of 
 
 
 
 January and the 14th day of October, both days 
 
 
 
 inclusive ■ 
 
 70 
 
 40 
 
 For ships clearing out between the 1 5th day of 
 
 
 
 October and the 17tli day of January, both days 
 
 
 
 inclusive ... 
 
 80 
 
 45 
 
 To the West Indies and any part of the East Coast of 
 
 
 
 Central or South America, north of the Equator ... 
 
 70 
 
 40 
 
 To any jiart of the East Coast of South America, lying 
 
 
 
 between the Equator and the 25th degree of south 
 
 
 
 latitude ... ... 
 
 84 
 
 50 
 
 To the West Coast of Africa north of the Equator . . . 
 
 84 
 
 50 
 
 To the Coast of Africa south of the E([uator, or to the 
 
 
 
 Falkland Islands, or to any part of the East Coast 
 
 
 
 of South America southward of the 25th degree of 
 
 
 
 south latitude ... 
 
 105 
 
 65 
 
 To the Mauritius, and to the Western Coast of Ame- 
 
 
 
 rica south of the Equator 
 
 126 
 
 75 
 
 To Ceylon 
 
 140 
 
 85 
 
 To Western Australia 
 
 120 
 
 85 
 
 To any other of the Australian Colonies 
 
 140 
 
 90 
 
 To New Zealand and to the Western Coast of America 
 
 
 
 between the Equator and the 40th degree of north 
 
 
 
 latitude 
 
 150 
 
 90 
 
 To the AVestern Coast of America north of the 40th 
 
 
 
 degree of north latitude, and the islands adjacent 
 
 
 
 thereto ... 
 
 182 
 
 96 
 
 For the like purposes, the said emigration commissioners, (/) acting by and under 
 the authority of one of H. M.'s principal secretaries of state, from time to time, by 
 any notice in writing issued under the haiuls of any two of such commissioners, and 
 puldished in the London Gazette, may nevertheless declare what shall be deemed 
 to be the length of voyage from the U. K. to any of the said hereinbefore mentioned 
 places, or to any other port or place Avhatsoever, and may fix such difl'erent lengths 
 of voyage as they may think reasonable for such different descriptions of vessels as 
 aforesaid. 
 
 (c) An error has crept into the rule regulating 
 the length of voyage to Korth America, which, 
 however, affects only vessels clearing out on the 
 16th or 17th of January. See the memorandum 
 on the Passengers Acts, issued by the Board of 
 Trade. 
 
 By notice in the London Gazette of 7th 
 June, 1864, it is declared that the length of the 
 voyage from the U. K. to Nortli America (except 
 the West Coast thereof) shall, for the purposes of 
 the said Passengers Act, 1856, be as follows ; (that 
 
 is to Fay) :— For Passenger Ships propelled by 
 steam engines of sufficient power to propel the 
 ship without the aid of sails at the rate of not less 
 than ten statute miles an liour, if the ship clears 
 out between the 16th day of January and the 
 14th day of October, both days inclusive, 32 days; 
 and if the ship clears out between the 15th day 
 of October and the 15th day of January, both 
 days inclusive, 37 days. 
 (/) Now Board of Trade, 35 & 36 Vict. c. 73,
 
 812 
 
 THE PASSENGEES ACT, 1855, 
 
 Before c-loav- 
 aiice provi.sions 
 and water to be 
 surveyed. 
 
 Provisions for 
 the crew not to 
 be inferior to 
 tliose for the 
 passengers. 
 
 Penalt}% 
 
 power to 
 emigration 
 officer to reject 
 and mark bad 
 ]novisions, and 
 direct the same 
 to be landed, 
 and if rcshipped 
 parties liable to 
 a penalty. 
 
 Water tanks or 
 casks to he 
 approved by 
 emigration 
 officer. 
 
 Provision for 
 tonching at 
 intermediate 
 ports to till up 
 water. 
 
 31. Before any " Passenger Sliip " shall be cleared out the emigration officer at 
 the port of clearance shall surv^ey or cause to be surveyed by some com]ieteut 
 person the provisions and water by this Act required to be placed on board for tlie 
 consumption of tlie jjassengers, and shall satisfy himself that the same are of a 
 good and wholesome rjualitj", and in a sweet and good condition, and are in quan- 
 tities sufhcieut to secure throughout the voyage the issues hereinafter prescribed : 
 in addition to the allowance of pure water for the use of each passenger there shall 
 be shipped for cooldug purposes an additional suj^ply of jiure water, after the rate 
 of at least ten gallons for every day of the prescribed length of the voyage for 
 every 100 statute adults on board ; and also for the use of tlie crew and all other 
 persons on board an ample supply of wholesome provisions and pure water, wliich 
 shall not be inferior in quality to the supply of the same articles pro^dded for tlie 
 consumption of the passengers: all such water, provisions, and stores shall lie 
 provided and properly stowed away in accordance with tlie requirements of thu 
 29th section of this Act, by and at the expense of the owner, charterer, or master 
 of the ship ; and if a clearance be obtained for any " Passenger Sliip " whicli shall 
 not be then stored with the requisite quantities of such water, provisions, and 
 stores as are required by this Act, the owner, charterer, or master of such sliip, 
 or any of them, shall for each offence be liable to a penalty not exceeding £300 
 sterling. 
 
 32. If such emigration officer shall consider that any of the provisions or stores 
 or water are not of a good and wholesome quality, or are not in a sweet and good 
 condition, it sliall be lawful for him to reject and mark the same, or the packages 
 or vessels in which they are contained, and to direct the same to be landed or 
 emptied ; and if such rejected provisions or stores or water shall not thereu2:)on be 
 forthwith landed or emptied, or if, after being landed, the same or any j^art thereof 
 shall be reshipped in sucli ship, the owner, charterer, or master tliereof, or any of 
 them, or if resliipped in any other " Passenger Ship," the j^erson causing the same 
 to be reshipped, shall for each offence be liable to a penalty not exceeding JlOO 
 sterling. 
 
 33. In every " Passenger Ship " the water to be laden on board, as hereinbefore 
 required, shall be carried in tanks or in casks to be approved bj^ the emigration 
 officer at the port of clearance. When casks are used, they shall be sweet and 
 tight, of sufficient strength, and if of wood, properly charred inside, and shall not 
 be capable severally of containing more than 300 gallons each : the staves of the 
 water casks shall not be made of tu-, pine, or soft wood. In case of noncompliance 
 with any of the requirements of this section, the owner, charterer, or master of 
 such ship, or any of them, shall for each offence be liable to a penalty not exceed- 
 ing £oO. 
 
 34. If any " Passenger Ship " shall be intended to call at any intermediate port 
 or place diuing the voyage, for the piu-pose of taking in Avater, and if an engage- 
 ment to that effect shall be inserted in the bond mentioned in the 63rd section of 
 this Act, then it shall be sufficient to place on boiu'd at the port of clearance such 
 supply of water as may be requisite, according to the rate hereinafter mentioned, 
 for the voyage of the said ship to such intermediate port or place, subject to the 
 following conditions ; (that is to say,) 
 
 First. That the emigration officer signify his approval in writing of the arrange* 
 ment, to be carried amongst the papers of the sliip, and exhiljited to the chief 
 officer of customs, or to H. M.'s consular officer, as the case may be, at such 
 intermediate port or place, and to be delivered to the chief officer of customs, 
 or to H. IM.'s consular officer, as the case may be, on the arrival of the said 
 ship at the hiial port or place of discharge : 
 
 Secondly. That if the length of either portion of the A'oyage, whether to such 
 intermediate port or place, or from such intermediate port or place to the final 
 port or place of discharge, be not prescriljed in or mider the provisions of this 
 Act, the emigration officer at the port of clearance shall in every such case 
 declare the same, in writing, to be carried amongst the papers of the ship : 
 
 Thirdly. That the ship shall have on board at the time a clearance is demanded, 
 tanks or water casks, of the description hereinbefore mentioned, sufficient for 
 stowing the quantity of water requked for the longest of such portions of the 
 voyage as aforesaid.
 
 18 & 19 VICT. c. 119. 
 
 813 
 
 35. The master of every " Passenger Ship " shall, during the voyage, including Dietaiy scales of 
 the time of detention at any place before the termination thereof, issue to each P^'visions- 
 passenger, or, where the passengers are divided into messes, to the head-man for 
 the time heing of each mess, on behalf and for the use of all the members thereof, 
 an allowance of pure water, and sweet and wholesome provisions, of g0(jd quality, 
 according to the following dietary scale ; (that is to say,) if the lengtli of the 
 voyage, computed as hereinbefore mentioned, shall not exceed 84 days for ships 
 propelled by sails only, or 50 days for ships propelled by steam, or steam in aid of 
 sails, then according to the dietary scale marked "A.;" but if the length of the 
 voyage, computed as aforesaid, shall exceed 84 days for ships propelled by sails 
 oidy, or 50 days for ships propelled by steam, or steam in aid of sails, then accord- 
 ing to tlie dietary scale marked " B." 
 
 Water. («) 
 
 Tliree quarts of water daily to each statute adult, exclusive of the quantity 
 hereinbefore specified as necessary for cooking the articles hereinafter required, 
 to be issued in a cooked state. 
 
 (a) By Order iu Council dated the 28th day of 
 June, 1875, after reciting amongst other things 
 that H. M., by an Order in Council, dated the 
 6th day of May, 1857, prescribed certain rules for 
 permitting tlie use on board passenger ships pro- 
 polled wholly by steam engines of not less iJDwcr 
 than is snttlcient, without the aid of sails, to propel 
 the ship at the rate of five statute miles an hour, 
 having on board, in tanlvs or casks, only half the 
 quantity of pure v^-ater required by the said Act to 
 bo carried for the use of the passengers, of an 
 efficient apparatus for distilling fresh water from 
 salt water ; that Her Majesty, by an Order in 
 Council, dated the 5th da.v of December. 1SG5, 
 prescribed certain rules and conditions for per- 
 mitting the use on board passenger sliips pro- 
 pelled by sails only, or by steam engines of less 
 power than is sufficient, without tlie aid of sails, 
 to propel the ship at the rate of five statute 
 miles an hour, of an efficient apparatus for dis- 
 tilling fresh water from salt water, of the de- 
 scription commonly known either as Nor- 
 mandy's Patent, as Winchester .and Graveley's 
 Patent, or as cliaplin and Company's Patent ; 
 and that it is expedient to revoke the said recited 
 Orders in Council, and to issue in lieu thereof 
 the Order hereinafter contained ; — Her Majesty 
 doth, by and with the advice of Her Privy 
 Council, and in pursuance and in exercise of the 
 authority vested in her by the said ";Passongers 
 Act, 1805" liereby revoke the said Order in 
 Council of the 6th day of May, 1857, and the said 
 Order in Council of the 5th day of December, 
 1865, except in so far as the latter repeals a 
 certain Order in Council of the 9th day of 
 Jaiuiary, 1863, and doth hereby order as follows ; 
 any passenger ship, whether propelled by steam 
 engines or by sails only, or by sails and steam 
 engines, may be cleared out and proceed on her 
 voyage, having on board, in tanks or casks, only 
 half of the quantity of pure water reciuired by 
 the said Act to 1)0 carried for the use of the pas- 
 sengers, provided that the following rules and 
 regulations be observed ; (that is to say,) 
 
 1. That there be on board such ship an effi- 
 cient apparatus for distilling fresh water 
 
 from salt water of such a description as tho 
 Board of Trade may from time to time 
 approve. 
 
 2. Tliat the owners, chartei-ers, or master of 
 
 such ship before clearance, lodge with tho 
 emigration officer at the port of clearance 
 a certificate from one of the engineer sur- 
 veycn's appointed by the Board of Trade, 
 declaring that the apparatus is in good 
 working condition, ami that within 
 seven days immediately preceding the 
 date of such certificate the same had been 
 examined by him, and stating tho number 
 of imperial gallons of pure fresh ■o'ater 
 which it is capable of producing in every 
 twenty-four lunirs, and further declariug 
 that the apparatus on board is such as has 
 been approved by tlie Board of Trade as 
 aforesaid. 
 
 3. That in every case such emigration officer 
 
 shall be satisfied that the number of gallons 
 of pure water which the apparatus is so 
 certified to be capable of producing in every 
 twenty-four hours, is a number of gallons 
 equal to the -vs-liole number of persons 
 about to proceed on the intended voyage 
 of such ship — that is to say, one gallon 
 per head for the whole number of cabin 
 passengers, passengers and crew. 
 
 4. That there is rated on the ship's articles, and 
 
 there is on board tho ship, some person or 
 persons who, to the satisfaction of the .^^aid 
 emigration officer, shall be competent for 
 the proper management and repair of such 
 distilling apparatus; and to prevent all 
 doubts on tlie construction of this Order in 
 Council, it is hereby further ordered that 
 the terms '■ Emigration Officer," '• Statute 
 Adult," "Master," and "Passenger Ship," 
 .shall herein have the same significations 
 as are assigned to them in tlie said " Pas- 
 sengers Act 1855," and " The Passengers 
 Act Amendment Act, 1863," respectively, 
 and the term "Board of Trade" shall 
 herein have the meaning assigned to it by 
 "The Merchant Shipping Act, 1854."
 
 814 
 
 THE PASSENGEES ACT, 1855, 
 
 Provisions. 
 
 Weekly, per statute adiUt :— 
 
 
 
 
 
 Scale A. 
 For voyages not 
 
 exceedinsr 84 
 (lays for sailing 
 
 Scale B. (a) 
 For voyages 
 exceeding 84 
 
 
 
 clays for sailing 
 
 
 
 
 
 vessels, or 50 clays 
 
 vessels, or 50 daj-s 
 
 
 
 
 
 for steamers. 
 
 for steamers. 
 
 
 
 
 
 lbs. oz. 
 
 lbs. oz. 
 
 Bread or Biscuit, 
 
 not inferior 
 
 in quality to 
 
 navy 
 
 
 
 1 jiscuit ... 
 
 
 
 
 3 8 
 
 3 8 
 
 Wlieateu Hour ... 
 
 
 
 
 1 
 
 2 
 
 Oatmeal ... 
 
 
 
 
 1 S 
 
 1 
 
 Eice 
 
 
 
 
 1 8 
 
 8 
 
 Peas 
 
 
 
 
 1 8 
 
 1 8 
 
 Potatoes 
 
 
 
 
 2 () 
 
 2 
 
 Beef 
 
 
 ... • .. 
 
 
 1 4 
 
 1 4 
 
 Pork 
 
 
 ... 
 
 
 1 
 
 1 
 
 Tea 
 
 
 
 
 2 
 
 () 2 
 
 Sugar 
 
 
 ... ... 
 
 
 1 
 
 1 
 
 Salt 
 
 
 
 
 2 
 
 2 
 
 Mustard 
 
 
 
 
 i 
 
 h 
 
 Black or Avliite pepper, .ground 
 
 
 
 J 
 
 i 
 
 Vinegar 
 
 
 
 
 One gill. 
 
 One gill. 
 
 Lime juice (b) ... 
 
 
 
 
 
 G 
 
 Preserved meat . . . 
 
 
 
 
 
 1 
 
 Suet 
 
 
 ... 
 
 
 
 6 
 
 Raisins 
 
 
 
 
 
 8 
 
 Butter 
 
 
 
 
 
 4 
 
 Substitutions (c). 
 
 Substitutions at the follotviag rates may, at the option of the master of any 
 ' Passenger Ship," be made in the above dietary scales, that is to say :- — 
 1 lb. of preserved meat 
 
 1 lb. of flour or of bread or biscuit, or 
 
 ^ lb. of beef or of pork 
 
 1 lb. of rice 
 
 J lb. of preserved potatoes 
 
 10 oz. of currants... 
 
 3| oz. of cocoa or of coflee, roasted and 
 
 ground 
 
 f lb. of treacle 
 
 1 gill of mixed pickles 
 
 for 1 111. of salt pork or beef. 
 
 f. j Ij lb of oatmeal, or 1 lb. of rice, 
 
 or 1 lb. of peas, 
 for 1 J lb. of oatmeal, or vice versa. 
 for 1 lb. of potatoes, 
 for 8 oz. of raisins. 
 
 for 
 
 for 
 for 
 
 oz. of tea. 
 
 h lb. of sugar. 
 1 gill of ^dnegar. 
 
 Penalty on non- Provided, that the substituted articles be set forth in the contract tickets of the 
 
 compliiuice. 
 
 Size of messes 
 
 passengers. In case of noncompliance with any of the recpiirements of this sec- 
 tion, the master of the ship shall be liable for each offence to a penalty not 
 exceeding £50 sterling. 
 
 36. The messes into which the passengers in any passenger ship may be divided 
 shall not consist of more than ten statute adults in each mess, and members of the 
 
 (a) Another dietary scale instead of Scale B. 
 was authorised by notice in London Gazette of 
 29th April, 1856. 
 
 (b) See 26 & 27 Vict. c. 51. s. 9, post. 
 
 (c) See 26 & 27 Yict. c. 61, s. 10.
 
 18 & 19 VICT. 0. 119. 
 
 815 
 
 same family, whereof one at least Is a male adult, shall be allowed to form a 
 separate mess. The provisions according to the above scale shall be issued, such 
 of them as require to be cooked, in a properly cooked state, daily, before two 
 o'clock in the afternoon, to the head person for the time being of each mess on 
 behalf and for the use of the members thereof. The first of such issues shall be 
 made before two o'clock in the afternoon of the day of embarkation to or for such 
 passengers as shall be then on board. In case of noncompliance with any of the 
 rec^uirements of this section, the master of the ship shall for each offence be liable 
 to a penalty not exceeding ^50. 
 
 37. Tlie said emigration commissioners (d) for the time being, [acting under the 
 authority of one of H. M.'s principal secretaries of state] (e), may from time to 
 time, by any notice (/) for that purpose, issued under the hands of any two of 
 such commissioners, and published in the London Gazette, authorize the issue of 
 provisions in any " Passenger Ship" according to such other dietary scale (besides 
 that hereinbefore prescribed) as shall in their opinion contain in the whole an 
 equivalent amount of wholesome nutriment ; and after the publication of such 
 notice it shall be lawful for the master of any "Passenger Ship" to issue pro- 
 visions to his passengers either according to the scale by this Act j^rescribed, or 
 according to the scale authorized by the said commissioners (d), whichever may 
 have been set forth in tlie contract tickets of the passengers : provided always, that 
 the said commissioners (d) [acting under such authority and] (e) by such notice as 
 aforesaid may revoke or alter any such dietary scale authorized by them, as 
 occasion may require. 
 
 38. Every " Passenger Ship " carrying as many as 100 passengers shall 
 have on board a seafaring person, who shall be rated in the ship's articles as 
 passengers' steward, and who shall be approved by the emigration officer at the 
 port of clearance, and who shall be employed in messing and serving out the pro- 
 visions to the passengers, and in assisting to maintain cleanliness, order, and 
 good discipline among the passengers, and who shall not assist in any way in 
 navigating or working the ship. In case of noncompliance witli any of the 
 requirements of this section, the master of the shi]) shall for each offence be liable 
 to a penalty not exceeding J50 nor less than £5 sterling. 
 
 39. Every "Passenger Ship" carrying as many as 100 passengers shall 
 also have on board a seafaring man, or if carrying more than 300 "' statute adults," 
 two seafaring men, to be rated and approved as in the case of passengers stewards, 
 
 Provisions to bo 
 i.^sued dail.y, and 
 articles whicli 
 require cooking 
 to be cooked. 
 
 Power to Board 
 of Trade to 
 autliorise an 
 alternative 
 dietary sale. 
 
 Power to alter 
 diotaiy scale. 
 
 As to passengers 
 stewards. 
 
 Penalty on non- 
 compliance. 
 
 As to passengon 
 cooks and cook- 
 ing apparatus, 
 
 (d) Now Board of Trade, 35 & 36 Vict. c. 73, s. 5. 
 
 (e) Those words within brackets are repealed 
 by Statute Law Rev. Act, 1875. 
 
 (/) A notice (in London Gazette of 29th April, 
 1856), dated 26th April, 1856, authorises from 
 this date the issue of provisions in any passenger- 
 ship proceeding on any voyage of which the 
 length computed as in the said Act mentioned 
 shall exceed 84 days for ships propelled by sails 
 onlj% or 50 days for ships ]3ropelled by steam, or 
 steam in aid of sails, according to the subjoined 
 scale marked C instead of according to the scale 
 marked B., in tlie 37th section of the said Act, 
 provided tliat such substituted scale be set forth 
 in the contract tickets of the passengers. 
 
 Dietary Scale C. 
 
 For voyages exceeding 84 days for sailing vessels 
 of 50 days for steamers, per week, per 
 statute adult : 
 
 Lbs. Oz, 
 Beef or Pork, or partly one and 
 
 partly the oilier 2 4 
 
 Preserved meat 10 
 
 Suet 6 
 
 Butter 4 
 
 Bread or biscuit not inferior in 
 
 quality to navy biscuit .. ..2 8 
 Wheaten flour not inferior to best 
 
 seconds 3 8 
 
 Oatmeal, rice, and peas, or any two 
 
 of them 2 
 
 Potatoes 2 
 
 Lbs. Oz. 
 
 Eaisius 6 
 
 Tea 2 
 
 Sugar 10 
 
 Salt 
 
 Mustard OJ 
 
 Pepper, black or white ground . . oj 
 Preserved and dried vegetables, ' ^ 
 that is, cabbages, carrots, turniiis, \ -^ , 
 onions, celery, and mint, or some | , . °^'" 
 one or more of them . . . . [ >^'oi'^' 
 Vinegar or mixed pickles . . . . 1 Gill. 
 With such power of substitution in the above 
 articles as is given in the 37th section of the 
 Passengers Act, 1855. 
 
 For children between 1 and 4 years of age, in 
 addition to half-rations of the above-named 
 articles:— 
 
 Per Week. 
 
 Preserved milk 3 gills. 
 
 Condensed egg i oz. 
 
 or fresh eggs 3 „ 
 
 For children between 4 and 12 Months of 
 
 Per Week. 
 
 Water 21 pints. 
 
 Preserved millc 7 gills. 
 
 „ soup 9 ozs. 
 
 Condensed egg i ,, 
 
 or fresh eggs Z ., 
 
 Biscuit 12 „ 
 
 Oatmeal 4 „ 
 
 Flour 8 „ 
 
 Kice 4 „ 
 
 Sugar !0 „
 
 816 
 
 THE PASSENGERS ACT, 1855, 
 
 Ponalty on non- 
 coiuplianco. 
 
 In what cases 
 inlcrprctors to 
 be carried. 
 
 Penalty. 
 
 In wliat cases a 
 medical man 
 must be carried. 
 
 Penally 
 
 Qnnlification of 
 medical man. 
 
 Penalty. 
 
 Medicines and 
 medical com- 
 forts. 
 
 Penalty. 
 
 who shall be employed in cooking the food of the passengers : a convenient place 
 for cooking shall also T)e set ajsart on deck ; and a sufficient cooking apparatus, 
 properly covered in and arranged, shall be provided, to the satisfaction of the said 
 emigration officer, together with a proper supply of fuel adec£uate, in his opinion, 
 ; for the intended voyage. In case of noncompliance with any of tlie retpiirements 
 of this section, the master of the ship shall for each offence be liable to a penalty 
 not exceeding £60 nor less than ;£'5 sterling. 
 
 40. In every foreign "Passenger Ship" in which as many as one half of the 
 passengers shall be British subjects, unless the master and officers or not less than 
 tliree of them shall understand and speak intelligibly the English language, there 
 .shall be carried, wliere the number ot passengers does not exceed 250, one person, 
 and where it exceeds 250, two persons, who understand and speak intelligibly the 
 language spoken liy the master and crew and also the English language, and such 
 persons shall act as interpreters, and be employed exclusively in attendance on 
 the passengers, and not in the working of the ship ; and no such ship shall clear 
 out or proceed to sea without liaA'iug such interpreter or interpreters on board ; 
 and the master of any such foreign ship clearing out or proceeding to sea without 
 having such interpreter or interpreters on board as aforesaid, shall for each 
 offence be liable to a penalty not exceeding J50 nor less than £5 sterling. • 
 
 41. Every " Passenger Ship" shall in the following cases carry a duly c[ualified 
 medical practitioner, who shall be rated on the ship's articles: 
 
 Frist, when the duration («) of the intended voyage, as hereinbefore computed 
 exceeds 80 days in the case of ships propelled by sails, and 45 days in the 
 case of ships propelled by steam, and the number of passengers on board 
 exceeds 50. 
 Secoud, whenever the number of persons on board (including cabin passengers, 
 officers, and crew) exceeds 300. 
 In case of noncompliance with any of the requirements of this section, the master 
 shall for each offence be liable to a penalty not exceeding ^100 nor less than £20 
 sterling. 
 
 42. No medical practitioner shall be considered to be duly qualiiied for the 
 purposes of this Act imless authorized by law (h) to practise in some part of H. M.'s 
 dominions, or, in the case of a foreign ship, in the country to which such ship 
 may belong, as a physician, surgeon, or apothecary, nor unless his name shall have 
 been notified to the emigration officer at the port of clearance, and shall not be 
 objected to by him, nor unless he shall be provided with proper surgical instru- 
 ments to the satisfaction of such officer : provided, nevertheless, that where the 
 majority of the passengers in any " Passenger Ship," or as many as 300, are 
 foreigners, any medical practitioner who may be approved by such emigration 
 officer may be carried therein. In case any person shall proceed or attempt to 
 proceed as medical practitioner in any "Passenger Ship" A\'ithout being duly 
 qualified as aforesaid, or contrary to any of the requirements of this section, such 
 person and all persons aiding or abetting therein shall for each offence be liable to 
 a i)enalty not exceeding £100 nor less than JlO sterling. 
 
 43. The owner or charterer of every " Passenger Ship" shall provide for the use 
 of the passengers a supply of medicines, medical comforts, instruments, and other 
 things proper and necessary for diseases and accidents incident to sea voyages, and 
 for the medical treatment of the passengers during the voyage, including an 
 adequate supply of disinfecting fluid or agent, together with printed or Miitten 
 directions for the use of the same respectively ; and such medicines, medical com- 
 forts, instruments and other things shall, in the judgment of the emigration officer 
 at the i^ort of clearance, be good in quality, and sufficient in quantity, for the 
 probable exigencies of the intended voyage, and shall be properly packed and 
 placed under the charge of the medical practitioner, when there is one on board, 
 to be used at Ms discretion. In case of noncomjjliance with any of the require- 
 ments of this section, the master of the ship shall for each offence be liable to a 
 penalty not exceeding £50 nor less than £5 sterling. 
 
 (a) By order in council, dated 9 th August, 1866. 
 every passenger ship cariTing more than 50 
 passengers on any voyage to which the Passengers 
 Acts extend, whatsoever be the duration of the 
 
 voyage, must cariT' a duly qualified medical prac- 
 titioner, who must be rated on the ship's articles, 
 (b) See Medical Act of 1858, 21 & 22 Vict. C. 90. 
 s. 36 ; 22 Yict. c. 21 ; 23 Vict. c. 7.
 
 18 & 19 VICT. c. 119. 817 
 
 44. No " Passenger Ship," except as hereinafter provided, shall clear ont or Medical in- 
 proceed to sea until some medical ])ractitioner, to be appointed by the emigration p.^!^!;^^*" °* 
 officer at the port of clearance, shall have insjjected such medicines, medical com- medicines, &c.' 
 forts, and other articles as are required to be supplied by the last preceding 
 
 section, and also all the passengers and crew about to proceed in the ship, and 
 shall have certified to the said emigration officer that the said ship contains a 
 sufficient supply of medicines, medical comforts, disinfecting fluid or agent, in- 
 struments, and other things requisite for the medical treatment of the passengers 
 during tlie intended voyage, nor until such medical practitioner shall have certified 
 and the said emigration officer shall be satisfied that none of tire passengers or 
 crew appear, by reason of any bodily or mental disease, unfit to proceed, or likely 
 to endanger the health or safety of the other persons about to jiroceed in such 
 vessel. Such medical inspection of the passengers shall take j^lace either on board 
 the vessel, or, at the discretion of the said emigration officer, at such convenient 
 l>lace on shore before embarkation as he may appoint ; and the master, owner, or 
 charterer of the ship shall pay to such emigration officer a sum at the rate of 
 20s. for every 100 persons so examined : provided also, that in case the 
 emigration officer on any particular occasion shall be unable to obtain the attend- 
 ance of a medical jn-actitioner, it shall be lawful for the master of any such ship to pg„„|(.y 
 clear out and proceed to sea, on receiving from the said emigration officer written ' ' ' 
 permission for the purpose. In case any " Passenger Ship " shall clear out or 
 proceed to sea without having complied with all the requirements of this section, 
 the master of such ship shall for each offence be liable to a penalty not exceeding 
 £100 nor less than £5 sterling, 
 
 45. If the emigration officer at any port shall be satisfied that any person on Relanding of 
 board or about to proceed in any " Passenger Ship " is by reason of sickness unfit accounl^of sick- 
 to proceed, or is for that or for any other reason Hkely to endanger the health or ness, orfoi- 
 safety of the other persons on Ijoard, the said emigration officer shall prohibit the piu'ifyins ship, 
 embarkation of such person, or if emlmrked shall require him to be relanded ; and 
 
 if such emigration officer shall be satisfied that it is necessary, for the purification 
 of the ship or otherwise, that all or any of the passengers or persons on board 
 should be relanded, the said emigration officer may requii-e the master of the ship 
 to reland all such passengers or persons, and the master shall thereupon reland 
 such passengers or persons, with so much of their effects and with such members 
 of their families as cannot in the judgment of such emigration officer be properly 
 separated from them ; and in case of noncompliance witli any of the requirements P'^^^^^y* 
 of this section, the master, owner, or charterer of the ship shall for each offence be 
 liable to a penalty not exceeding £200 nor less than £10 ; and any passenger 
 or person embarking after such proliiljition, or refusing or neglecting to leave 
 the ship when so directed to l)e relanded, shall be liable to be summarily 
 removed, and to a penalty not exceeding 40.s. for each day which he shall remain 
 on board after the giving of such prohibition or direction. 
 
 46. Any passenger so relanded on account of the sickness of himself or of any Passengers 
 member of his family who may not be re-emlmrked and finally sail in such ship, JJ^snts. 
 or any emigration officer on liis behalf, shall be entitled to recover, by summary As to return of 
 process, the whole of the monies which may have been paid by or on account of Passage mo.iey 
 such passenger for his passage and that of the members of his family so relanded, relanded In '^ 
 from the party to whom the same may have been paid, or from the owner, account of sick, 
 charterer, or master of such ship, or any of them, at the option of such passenger "°^^' ^^' ^'^^' 
 or emigration officer. 
 
 47. The master of any " Passenger Sliip," from which the whole or any part of Subsistence 
 the passengers shall be relanded on account of any of the reasons mentioned in ^I'ld to pasw-D- 
 section 45, shall pay to each passenger so relanded (or if he shall l3e lodged and gers relanded." 
 maintained in any hulk or establishment under the superintendence of the said 
 emigration commissioners (d), then to the emigration officer at tlie port) sul^sis- 
 
 tence money at the rate of one shilling and sixpence a day for each statute adult, 
 until he shall be re-embarked, or decline or neglect to proceed, or until his 
 passage money, if recoverable under the 46th section of this Act, be returned to 
 lam. 
 
 (c) See 2C & 27 Vict. c. 51, s. 11, 2wst. (cZ) Now Board of Trade, see 3D & 36 Vict, c.73, s. 5, post. 
 
 3 ft
 
 818 
 
 PASSENGERS ACT, 1855, 
 
 Eetirni of pas- 
 sage money and 
 compensation to 
 passengers 
 •where jiassages 
 not provided for 
 them according 
 to contract. 
 
 Snbsistence in 
 case of 
 detention. 
 
 Ships putting 
 back to re- 
 plenish pro- 
 visions. &c. (^). 
 
 Penalty on 
 master for 
 default. 
 
 Ships putting 
 back to be 
 reported to 
 emigration 
 officer. 
 
 48. If any person by whom or on -whose behalf any contract shall have been 
 made for a passage iu any ship proceeding on any voyage to Avhicli this Act 
 extends, shall be at the place of embarkation before G o'clock in the afternoon of 
 the day of embarkation appointed in such contract, and shall, if recpiired, pay the 
 stipulated passage money, or the unpaid balance thereof, and if from any cause 
 whatever, other than his own refusal, neglect, or default, or the prohibition of an 
 emigi-ation otticer, as hereinbefore mentioned, or the requirements of any order in 
 council, such passenger shall not be received on board before that hour, or if from 
 any such cause as aforesaid any passenger who shall have been received on board 
 shall not either obtain a passage in such sliip to the port at which he may have 
 contracted to land, or, together with all the immediate members of his family who 
 may be included in such contract, obtain a passage to the same port in some other 
 equally eligible ship, to sail within ten days from the expiration of the said day of 
 embarkation, and in the meantime be paid subsistence money from the time and 
 at the rate hereinafter mentioned, such passenger, or any emigration officer on his 
 behalf, shall be entitled to recover, either from the party to whom or on whose 
 account the same may have been paid, or (in case such contract shall have been 
 made with the owner, charterer, or master of such ship, or with any person acting 
 on behalf or by the authority of any of them resjDectively,) from such owner, 
 chai'terer, or master of such ship, or any of them, at the option of such passenger 
 or emigration officer, all monies which shall have been paid by or on account of 
 such i^assengers for such passage, and also such further sum, not exceeding £10 in 
 respect of each such passage, as shall, in the opinion of the justices of the peace 
 who shall adjudicate on the complaint, be a reasonable compensation for the loss 
 or inconvenience occasioned to such passenger by the loss of such passage. 
 
 49. If any ship, whether a " Passenger Ship " or otherwise, shall not actually 
 put to sea, and proceed on her intended voyage before 3 o'clock in the afternoon of 
 the day next after the said day of embarkation, the owner, charterer, or master of 
 such ship, or his or their agent, or any of them, at the option of such passenger or 
 emigration officer, shall pay to every passenger entitled to a passage (or if such 
 passenger shall be lodged and maintained in any establishment under the superin- 
 tendence of the said emigi-ation commissioners («), then to the emigration officer at 
 the port of embarkation,) subsistence money after the rate of one shilling and six- 
 pence for each statute adult, in respect of each day of delay for the first ten days, 
 and afterwards 3^. a day for each statute adult, until the final departure of 
 such ship on such voyage, and the same may be recovered in manner hereinafter 
 mentioned : jirovidecl that if the passengers be maintained on board in the same 
 manner as if the voyage had commenced, no such subsistence money shall be pay- 
 able for the first two days next after the said day of embarkation, nor if they 
 shall be maintained shall such subsistence money be payable if the ship be un- 
 avoidably detained by wind or weather, or by anj' cause not attributable, in the 
 opinion of the emigration officer, to the act or default of the owner, charterer, or 
 master, 
 
 50. If any " Passenger Ship " shall, after clearance, be detained in port for more 
 than seven days, or shall put into or touch at any port or place in the U. K., she 
 shall not put to sea again until there shall have been laden on board, at the 
 expense of the owner, charterer, or master of such ship, such fm-ther supply of 
 pure water, wholesome pro\'isions of the recj^uisite kinds and qualities, and medical 
 comforts and stores, as may be necessary to make up the full c[uantities of those 
 articles hereinbefore required to be laden on board for the intended voyage, nor 
 until any damage she may have sustained shall have been eftectually repaired, nor 
 until the master of the said ship shall have obtained from the emigration officer or 
 his assistant, or, where there is no such officer, or in his absence, fi'om the officer 
 of customs at such port or place, a certificate to the same eftect as the certificate 
 hereinbefore recpiired to enable the ship to be cleared out ; and in case of any 
 default herein the said master shall be liable, on conviction, as hereinafter men- 
 tioned, to a penalty not exceeding £100, nor less than £50 sterling ; and if the 
 master of any " Passenger Ship " so putting into or touching at any port or place 
 as aforesaid shall not within 12 hours thereafter report, in writing, his arrival, 
 
 (a) Now Board of Trade, see 35 & 36 Vict. c. 73, s. 5, 2wst. (b) See 39 & 40 Vict. c. 80, s. 14.
 
 18 & 19 VICT. 0. 119. 819 
 
 and the cause of liis putting Lack, and the condition of his ship, and ot her stores 
 and provisions, to the emigration oflicer, or, as the case may lie, to the officer of 
 customs at the port, and shall not produce to such officer tire official or " Master's penalty on 
 List" of passengers, such master shall for each offence be liable to a penalty not master" for 
 exceeding ^20, nor less than £2 sterling. ^'^^ "^^ ' 
 
 51. [Repealed by 26 & 27 Vict. c. 51, ss. 12, 13 ; see sect. 14, j;os<.] 
 
 52. If the passengers or cabin passengers of any "Passenger Ship" shall be Secretary of 
 taken olf from any such " Passenger Ship," or shall be picked up at sea from any pay ext^eusos^of 
 boat, raft, or otherwise, it shall be lawful, if the port or place to which they shall taking off pas- 
 l)e conveyed shall be in the U. K., for one of H, M.'s principal secretaries of state, sengers at sea. 
 or if in any of H. M.'s colonial possessions, for the governor of such colony, or for 
 
 any person authorized by him for the purpose, or if in any foreign country, for 
 H. M.'s consular officer at such port or place therein, to defray all or any part of 
 the expenses thereby incurred. 
 
 53. [Repealed by 26 & 27 Vict. c. 51, s. 12 ; see sect. 15, post] 
 
 54. [Repealed by 26 & 27 Vict. c. 51, s. 12 ; see sect. 16, jjosf.j 
 
 55. No policy of assurance effected in respect of any passages, or of any passage insurance of 
 or compensation monies, by any person by this Act made liable, in the events ^oft^^^y^^f 
 aforesaid, to provide such passages or to pay such monies, or in respect of any on account of 
 other risk under this Act, shall be deemed to be invalid by reason of the nature the nature of 
 of the risk or interest sought to be covered by such policy of assurance. ^ ^^^ ' 
 
 56. If any passenger in any ship, whether a " Passenger Ship " or other\vise, Penalty on 
 shall be landed at any port or place other than the port or place at which he may ]^andmg"p^. 
 have contracted to laud, unless with his previous consent, or unless sucli landing sengers. 
 shall be rendered necessary by perils of the sea, or other unavoidable accident, the 
 
 master shall for each offence be liable to a penalty not exceeding ^50, nor less 
 than ^10 sterling. 
 
 57. Every passenger in a " Passenger Ship" shall be entitled, forat least 48 bemaSned 
 hours next after his arrival at the end of his voyage, to sleep in the ship, for 48 hours 
 and to be provided for and maintained on board thereof, in the same manner as after arrival, 
 during the voyage, unless within that period the ship shall (juit such port or place 
 
 in the further prosecution of her voyage. In case of noncompliance with, any of Penalty, 
 the requirements of this section, the master sliaU for each, offence be liable to a 
 penalty not exceeding £5 sterling. 
 
 58. Nothing berein contained shall take awav or abridge any right of action Passengers' 
 
 T • ^ ", . 1--J. Ii- J- I'lglit Ot action 
 
 wliicli may accrue to any passenger m any ship, or to any otlier person, m respect preserved. 
 
 of the bi'each or nonperformance of any contract made or entered into between or 
 
 on behalf of any such passenger or other person, and the master, charterer, or 
 
 owner of any such ship, or his or their agent, or any passage broker. 
 
 59. It shall be lawful for H. M., by any order in council, to prescribe such Miscellaneous, 
 rules and regulations as to H. M. may seem fit, for the following purposes ; (that h. m. may, 
 
 is to say,) by orders 
 
 (1.) For preserving order, promoting health, and securing cleanliness and ven- gcribe ra'iejffor 
 tilation on board of "Passenger Ships" proceeding from the U. K. to any inu-poses liereiu 
 port or place in H. M.'s possessions abroad. described (c). 
 
 (c) Orders in council liave been made under fires, and to take care that they be kept 
 
 this section. As to obtaining abstract of same, alight during the day, and also to take care 
 
 see sect. 61, ])ost, p. 821. tliat eacli passenger or family of passengers 
 
 By Order in Council of 7th January, 1S64, " the sliall have the use of the fireplace at proper 
 
 following shall henceforth be the rules for pre- hours, in an order to be ftsed by the 
 
 serving order, for promoting health, and for master. 
 
 securing cleanliness and ventilation to be observed 3. When the passengers are dressed their beds 
 
 on board of every passenger ship proceeding shall be rolled up, 
 
 from the U. K. to any port or place in H. M.'s 4. The decks, including the space under the 
 
 possession abroad out of Europe, and not being bottom of the berths, shall be swept before 
 
 within the Mediterranean Sea" : breakfast, and all dirt thi-own overboard. 
 
 1. All passengers who shall not be prevented 5. The breakfast hour shall be from 8 to 9 
 
 by sickness or other sufiicient cause, to bo o'clock a.m. Before the commencement of 
 
 determined by the surgeon, or, in ships breakfast all the emigrants, except as 
 
 carrying no surgeon, by the master, shall hereinbefore excepted, are to be out of bed 
 
 rise not later than 7 o'clock a.m., at which and dressed, and the beds rolled up and the 
 
 hour the fires shall be lighted. deck on which the emigrants live properly 
 
 2. It shall be the duty of "the cook or cooks swept. 
 
 appointed under the 39th section of the 6. The deck shall be further swept after eveiy 
 
 said "Passengers Act, 1855," to light the meal, and after breakfast is concluded shall 
 
 3 G 3
 
 820 
 
 PASSENGEES ACT, 1855, 
 
 Gazette and 
 copies printed 
 by Queen's 
 
 (2.) For perniitting the use on board of " Passenger Ships" of an apparatus for 
 distilling water, and for defining in sucli case the (quantity of fresh -water 
 to be carried in tanks or casks for the passengers. (See Order, 6th May, 
 1857, and 5th December, 1865, ante, p. 813.) 
 (3.) For prohibiting emigration from any port or ports at any time -when 
 choleraic or any epidemic disease may be generally preA'alent in the 
 U. K. or anj' part thereof, or for reducing the number of passengers 
 allowed to be carried in " Passenger Ships " generally, or from any par^ 
 ticular ports iinder the provisions of this Act. 
 (4.) For requiring duly qitalihed niedioal j^rtictitioners to be carried in " Pas- 
 senger Ships," in cases -where they -\vould not be requii-ed to be carried 
 under the provisions of this Act (a). 
 Any such order in council may from time to time in like manner be altered, 
 amended, and revoked, as occasion may require. Any copy of such order in 
 council contained in the London Gautte, or purporting to be printed by the 
 
 be also di-y holy-stoned or scraped. This 
 duty, as vceW as that of cleaning the 
 ladders, hospitals, round-houses, and -n'ater- 
 closets, and of pumping -water into the 
 cisterns or tanks for the supply of tlie 
 water-closets shall be performed by a party 
 -who shall be taken in rotation from the 
 adult males above 14 in the proportion of 
 5 to every 100 emigrants, and shall be con- 
 sidered as s-s\cepers for the day. But the 
 single women shall do all necessary acts 
 for keeping clean and in a proper state 
 tlieir own compartment, where a separate 
 compartment is allotted to them, and the 
 occupant of each berth shall see that his or 
 her own berth is well b'-ushed out. 
 
 7. Dinner shall commence at 1 o'clock p.m., and 
 
 supper at 6 \t m. 
 
 8. The fires shall be extinguished at 7 p.m., 
 
 unless otherwise directed by the master or 
 requii'ed for the use of the sick : and the 
 emigrants shall be in their berths at 10 
 o'clock i).m., except under the permission 
 or authority of the surgeon, or, If there be 
 no surgeon,* of the master. 
 
 9. On each passenger deck there .shall be lit at 
 
 dusk, and kept burning till daylight, three 
 safety-lamps, and such further number as 
 shallallow one to be placed at each of the 
 hatchways used by passengers. 
 
 10. Ko naked light shall be allowed between 
 decks or in the hold at any time or on any 
 account. 
 
 11. The scuttles and stern-ports, if any, shall, 
 weather pennittlng, be opened at 7 o'clock 
 a.m., and kept ojien till 10 o'clock p.m. ; 
 and the hatches shall be kept open when- 
 ever the weather permits. 
 
 12. The C(>i)pers and cooking utensils shall be 
 cleaned every day, and the cisterns kept 
 filled with water. 
 
 13. The beds shall be well shaken and aired on 
 deck, weather permitting, at least twice a 
 week. 
 
 14. The bottom boards of the berths, if not 
 
 fixtures, shall be removed and dry-scrubbed 
 and, weather permitting, taken on deck at 
 least twice a week. 
 
 15. Two days in the week shall be appointed,by 
 the master as washing days, but no wash- 
 ing or drying of clothes shall on any 
 account be permitted between decks. 
 
 16. On Sunday mornings the passengers shall 
 be mustered at 10 o'clock a.m.. and will be 
 expected to appear in clean .and decent 
 apparel. The Lord's Day shall be observed 
 as religiouslj-as circumstances will admit. 
 
 17. Ko spu'its or gunpowder shall be taken on 
 board by any passenger, and if either of 
 those articles be discovered in tlie posses- 
 sion of a passenger it shall be taken into 
 the custody of the master during the 
 
 voyage and not returned to the passenger 
 until he has kmded or is on the jjoint of 
 landing. 
 
 18. No loose hay or straw shall be allowed 
 below for any puiiiose. 
 
 19. Ko smoking shall be allowed between 
 decks. 
 
 20. The following kinds of misconduct are 
 hereby strictly prohibited : that is to say. 
 all immoral or indecent acts or conducr. 
 taking improper liberties or using impro]jcr 
 familiarities with the female passengers, 
 using blasphemous, obscene, or indecent 
 language, or language tending to a breach 
 of the peace, swearing, gambling, drunken- 
 ness, fighting, disorderly, riotous, quarrel- 
 some, or Insubordmate conduct : also all 
 deposits of filth or offensive acts of un- 
 clcannoss in the between decks : provided 
 tliat no conviction under the said Pas- 
 sengers Act for any of the offences herein 
 specified shall operate as a bar to any civil 
 or criminal proceeding which may in ilie 
 ordinaiy course of law be instittited for 
 the same offence by any party aggrieved. 
 
 21. Firearms, swords, and other offensive wea- 
 pons shall, as soon as the passengers em- 
 bark, be placed in the custody of the 
 master. 
 
 22. No sailors shall be allowed to remain on the 
 passenger deck among the passengers, ex- 
 cept on duty. 
 
 23. Ko passenger shall go to the ship's cook- 
 house without special permission from the 
 master, nor remain in the forecastle among 
 the sailors on any account. 
 In vessels not expressly requfred by tlie 
 said "Passengers Act, 1855," to have t<n 
 board such ventilating apparatus as therein 
 mentioned, such other pro\-ision shall lie 
 made for ventilation as shall be required 
 by the emigration officer at the port of 
 embarkation, or in his absence, by the 
 officers of customs. 
 
 25. And to prevent all doubt in the construc- 
 tion of this Order in Council it is herel)y 
 further order th.at the terms "Uniteil 
 Kingdom," " Passenger." " Passenger 
 Ship," ''Passenger Deck," and "Master," 
 sliall herein liave the same significations 
 as are assigned to them respectively in the 
 said "Passengers Act, 1855," and unless 
 inconsistent with the context words of one 
 number shall import both numbers. 
 And the Most Koble the Duke of Kewcastle. 
 one of H. M.'s principal secretaries of state, is t<i 
 give the necessary directions herein accordingly. 
 An Order in Council of 3rd February, 18G3, re- 
 lates to certain private passenger ships conven- 
 ing passengers to the colony of Victoria in 
 Australia, 
 (a) See Order ia Council, 9th Augtist, 18G6. 
 
 24.
 
 18 & 19 VICT. c. 119. 821 
 
 Queen's printer, shall tliroughout H. M.'s dominions be received in all legal pro- printer to be 
 ceedings as good and sufficient evidence of the making and contents of any such orders.'^lc. 
 order in council. 
 
 60. In every such " Passenger Ship" the medical practitioner on board, aided by ^j^'^^l^^^ogj^j^ct 
 the master thereof, or, in the absence of such medical practitioner, the master of such obedience to' 
 ship is hereliy empowered to exact obedience to all rules and regulations which rules and regu- 
 may be prescribed by any such order in council to be observed on board passenger '^itions. 
 sliips as aforesaid ; and any person on board who shall neglect or refuse to obey 
 
 any such rule or regulation, or who shall obstruct the medical practitioner or ^g^'^fj,"'^ 
 master of such ship in the execution of any duty imposed upon him liy any such °" 
 
 rule or regulation, or who shall offend against any of the provisions of this Act, or 
 who shall be guilty of riotous or insubordinate conduct, shall be liable for each 
 offence to a penalty not exceeding £2 sterling, and, in addition thereto, to be con- 
 tined in the common gaol for ar^y period not exceeding one month, at the discre- 
 tion of the justices who shall adjudicate on the complaint. 
 
 61. The said emigration commissioners (h) shall from time to time prepare such Board of Trade 
 abstracts as they may think jiroper of the whole or any part of this Act, and of any ]^^^ IJb^ti'act 
 such order in council as aforesaid ; and four copies of such abstracts, together \d\h. of Act and 
 
 a copy of this Act, shall, on demand, be supplied by the principal ofticer of customs [!^^j^^^^j"' 
 at the port of clearance to the master of every " Passenger Ship " proceeding from ^^^^^ abstract 
 the U. K. to any port or place in H. M.'s possessions abroad ; and such master to be posted 
 shall, on recpiest made to him produce a copy of this Act to any passenger on "n. in each 
 board, for his perusal, and, further, shall post, previous to the embarkation of the '' "''" 
 passengers, and shall keep posted so long as any passenger shall be entitled to 
 remain in the ship, in at least two conspicuous places between the decks on which 
 passengers may be carried, copies of such abstracts ; and such master shall Ije liable penalty on 
 to a penalty not exceeding 40s. sterling for every day during any part of which by master for 
 his act or default such aljstracts shall fail to be so posted ; and any person displac- J^*;°foQ Li-son 
 ing or defacing such abstracts so posted shall be liable to a penalty not exceeding defacing 
 40s. sterling. . abstract. 
 
 62. If in any " Passenger Ship " any person shall during the voyage, directly or Sale of spirits 
 indirectly, sell or cause to be sold any spirits or strong waters to any passenger, he boljl^d passenger 
 shall Ije liable for every such ofl'ence to a penalty not exceeding £20 nor less than s^hips. 
 
 £5 sterling. " Penalty. 
 
 63. Before any " Passenger Ship " shall clear out or proceed to sea, the master, ^ond to be 
 together with the owner or charterer of the ship, or, in the event of the aljsence of given by 
 such OAvner or charterer, or if the master be the owner or charterer, one other good ];\^jti'|]^'"';,nd 
 and sufficient person, to be approved by the chief officer of customs at the port of foreign jias- 
 clearance, shall enter into a joint and several bond, in the sum of £2,000 {il), to ^^^ser sliips. 
 H. M., her heirs and successors, according to the form contained in Schedule (C.) 
 
 hereto annexed. Such bond shall not be liable to stamp duty, and shall be 
 executed in duplicate. 
 
 64. It shall be the duty of the chief officer of customs at the port of clearance of CmmterparL 
 any " Passenger Ship " bound to any of H. M.'s possessions abroad, to certify on Jj^ ce'Itiiiwi 
 one part of such l)ond that it has been duly executed by the said master of such and sent to 
 ship and the other obligor, and to forward the same by post to the coloniaP^'.'j^.^j'^i^'i'iJ ^o 
 secretary of the colony to which such " Passenger Ship " may be bound ; and such bound, and 
 certiticate shall, in any colonial court of judicature in which the bond may be put to be received 
 in suit, be deemed conclusive evidence of the due execution of the Ijond by the ^.j,i,oi,t fur- 
 said master and the other obligor, and it sliall not be necessary to prove the hand- tlier proof of 
 Avriting of the officer of customs who may have signed such certihcate, nor that he execution, 
 was at the time of signing it chief officer of customs at the port of clearance ; pro- 
 vided that wo such bond shall lie put in suit in any of H. M.'s possessions abroad 
 
 alter the expiration of 3 calendar months next after the arrival therein of the said 
 ship, nor in the U. K. after the expiration of 12 calendar months next after the 
 return of the said ship and of the said master to the U. K. 
 
 65. In the absence of any agreement to the contrary, the owner shall be the in the 'absence 
 party ultimately responsiljle, as between himself and the other persons hereby "f agreement 
 
 (Jj) Now Board of Trade ; 35 & 30 Vict. c. 73, ('/) £5.n00 wlicro neither tlie owners nor char- 
 
 s, 5. poKU tcrers reside in the U. K. ; 26 & 27 Vict. c. ulj 
 
 ('-■; See 26 & 27 Vict. c. 51, s. 17. 8. 17.
 
 822 
 
 PASSENGEES ACT, 1855, 
 
 trary, the 
 owner to be 
 responsible in 
 respect of 
 default. 
 
 Bruhers. 
 
 Ko pci-son to 
 act as a 
 passji.ce broker 
 without a 
 licence. 
 
 Board of Trade 
 and agents of 
 ])assage brokers 
 exempted 
 from this 
 section. 
 
 Passage brokers 
 to be respon- 
 sible for their 
 agents. 
 
 How passage 
 brokers' licences 
 may be 
 obtained. 
 
 Justices to 
 irive notice 
 to Board of 
 Trade 
 of licence 
 granted. 
 Kotice to be 
 given to Board 
 of Trade of 
 intended appli- 
 cation for 
 licences. 
 
 made liable in respect of any default in complying witli the requirements of tliis 
 Act ; and that if any sncli last-mentioned person shall pay any monies herehy 
 made payable to or on behalf of any such passengers, as aforesaid, the person so 
 paying the same shall be entitled, in the absence of any sucli agreement as afore- 
 said, to sue for and recover from the owner the amount so paid, together with 
 costs of suit. 
 
 66. ISTo person whatever shall directly or indirectly act as a passage broker in 
 respect of passages from the U. K. to any place out of Europe, and not being 
 "vvithin the Mediterranean Sea, or shall sell or let, or agree to sell or let, or be in 
 anywise concerned in the sale or letting of passages in any ship, whether a " Pas- 
 senger Ship " or otherAvise, proceeding from the U. K. to any such place as afore- 
 said, unless such person, with two good and sufficient sureties to be approved by 
 the emigi'ation officer at the port nearest to the place of business of such person, 
 shall have pre%-iously entered into a joint and several bond, in the sum of ^1,'H)0 
 to H. M., her heirs and successors, according to the form contained in Schedule (D. ) 
 hereto annexed, whicli bond shall be renewed on each occasion of obtaining suclt 
 licence as hereinafter mentioned, and shall lie in duplicate, without stamps, and 
 one part thereof shall be deposited at the office in London of the said emigration 
 commissioners (a), and the other jiart thereof with the emigration officer at the 
 port nearest to the place of business of sucli person, nor unless such jierson shall 
 have obtained a licence, as hereinafter mentioned, to let or sell passages, nor unless 
 such licence shall then be in force ; and if any person shall offend in any parti- 
 cular against this enactment, every person so oiiending shall for each offence be 
 liable to a penalty not exceeding ^50 nor less tlian £20, to be sued for and 
 recovered as hereinafter mentioned : proA-ided that such bond shall not be ret^uired 
 of any person a\-1io shall be one of the sworn brokers of the city of London : jn-o- 
 vided also, that there shall be excepted from the operation of this section the said 
 emigration commissioners (a), and any persons contracting with them, or acting 
 under their autliority, and also any person acting as the agent of any passage 
 broker in pursixance of an appointment made in the form prescribed by Schedule 
 (I.) hereto annexed, signed by such passage broker, and countersigned by such 
 emigration officer as aforesaid : pro^dded further, that the acts and defaults of any 
 person acting xmder the authority or as agent of any passage broker shall, for the 
 purposes of this Act, be deemed to lie also the acts and defaults of such passage 
 broker : ]irovided also, that nothing hereinbefore contained shall be held or con- 
 strued to prevent the said emigration officer from accejiting the bond of [a guarantee 
 society, such bond and] {b) such guarantee society' as shall have been approved by 
 the lords commissioners of H. M.'s treasury, in lieu of the bond of two good and 
 sufficient seciuities as aforesaid. 
 
 67. Any person wishing to obtain a licence to act as a passage broker in respect 
 of passages from the U. K. to any place out of Europe, and not being iji the 
 Mediterranean Sea, shall make application for the same to the justices at the petty 
 sessions held for the district or place in which such person shall have liis place of 
 business ; and such justices are hereliy authorized (if they shall think tit) to grant 
 a licence for that purpose, accortling^o the form in the Schedule (E.) hereuntn 
 annexed, which licence shall continue in force until the 31st day of December in 
 the year in Avhicli such licence sliall be granted, and for 31 days afterwards, unless 
 sooner forfeited, as herein mentioned ; and upon granting such licence the justices 
 shall cause a notice thereof according to the form In Schedule (F.) hereto annexed 
 to be transmitted forthwith by the post to the said emigration commissioners {u 
 at their office in London : provided always, tliat no such licence shall be granted 
 unless the party applying for the same shall .show to the satisfaction of the justices 
 that he has given such bond to H. M., her heirs and successors, as hereinbefure 
 refiuired, and has deposited one part thereof at the office in London of tlie said 
 commissioners («), or is a sworn broker of the city of London, and has in either case 
 given notice to the said commissioners (a) 14 clear days at least before such applica- 
 tion of his intention to ajiply for the same, wliich notice .shall be transmitted by 
 the post to the office in Loudon of the said commissioners {a), and shall be according 
 
 (a) Xow Bor.rd of Trade 85 & 36 Vict. c. 73, (h) These words it seems were inserted by 
 
 8. 6,i)06■^ mistake.
 
 18 & 19 VICT. c. 119. 823 
 
 to the form contained in the Schednle (G.) hereto annexed ; provided also, that Power to jus- 
 any justices of the i^eace who shall adjudicate on any offence against tliis Act, or [/c|u(5g°'tobe 
 on any breach or nonperformance of any of the requirements thereof, are hereby forfeited, 
 authorized, if they shall think tit, and the offender is a passage broker, to order his who shall give 
 licence to be forfeited, and the same shall tliereupon be forfeited accordingly ; and Yame to Board 
 the said justices making such order shall forthwith cause notice of such forfeitiu'e, of Trade, 
 in the form contained in the Schedule (H.)heretinto annexed, to be transmitted by 
 the post to the said commissioners (c) at their oiiice in London ; in Scotland, ^^^j.\'Jcencei'ia°'^ 
 where any person wishing to obtain such licence shall make application for the Scotland, 
 same to the sheriff" or steward, or sheriff' sul:)stitute or steward substitute, in place 
 of to such justices of the peace as aforesaid, the forms given in the said Schedttle 
 (D.), (E.), (F.), (G.), and (H.) respectively, shall still be adhered to, with such 
 alterations as may be necessarj-. 
 
 68. [Repealed by Statute Law Revision Act, 1875.] 
 
 69. No passage broker shall employ as an agent in his business of passage broker Passage brokers 
 any person not holding from him the appointment of agent as hereinbefore men- ^^eiits^eMeiJt 
 tioned ; and every person holding stich appointment shall produce the same, on tiio.<e expressly 
 tlie demand of any emigration othcer, or of any person treating for a passage under j'/i'g^''^''^'^ ^^ 
 this Act : for any breach or violation of this enactment in any particular, the Agents to pro- 
 offender shall be liable for each offence to a penalty not exceeding £50 nor less duce their 
 
 than £20. on demlud'^*^*' 
 
 70. If any person shall by false representation as to the size of a shii3, or other- „ , ' " 
 wise, or by any false pretence or fraud whatsoever, induce any person to engage a .sons fnuuiu- 
 passage in any ship, the person so offending shall for each offence be liable to a lentiy induc- 
 penalty not exceeding J20 nor less than £o sterling. to^engago^ 
 
 71. Every person whatever, except the said emigration commissioners (c) and passages. 
 l^ersons acting for them and under their direct authority, who shall receive money Contract tickets 
 from any person for or in resjiect of a passage in any ship, or of a cabin passage in f,tiier 'pas'-e"'^ 
 any " j^assenger ship " proceeding from the U. K. to any place ottt of Europe, and gers. 
 
 not being within the Mediterranean Sea, shall give to the person paying such 
 money a contract ticket, signed by the owner, charterer, or master of the ship or 
 " i^assenger ship " (as the case may be) in which the passage is to be provided, or 
 by some person in their or his name, and on their or his behalf : such contract 
 ticket shall be made otit in plain and legiljle characters on a printed form, which 
 in the case of cabin passengers shall be according to the form contained in 
 Schedule (K.) hereto annexed, and in the case of all other passengers in the form 
 contained in Schedule (L.) hereto annexed, or according to such other form as in 
 either case may from time to time be prescribed by the said emigration commis- 
 sioners (c) in any notice issued under their hands, or the hands of any two of them, 
 and j^ublished in the London Ga:xtta: and any directions contained on the face of 
 sucli form of contract ticket slnxll be obeyed in the same manner as if herein set 
 forth. In case of noncompliance with any of the reqtiirements of this section or 
 of any of the directions on such form of contract ticket not inconsistent with this 
 Act, the person so offending shall for eacli offence be lialtle to a penalty not exceed- 
 ing £b() nor less than £b sterling : provided always, that such contract tickets 
 shall not be liable to any stamp duty. 
 
 72. Any person who sliall alter or caitse to be altered, after it is once issued, or Penalty for 
 shall induce any person to part Anth, render useless, or destroy any such contract ",\e" q"!;?,!."'^ 
 ticket, during the continuance of the contract which it is intended to evidence with contract 
 (except in the case of cabin passengers who may have consented thereto) shall be ticket, 
 lialile in each case to a penalty not exceeding £20 sterling. 
 
 73. Any question which may arise respecting the breach or nonperformance of i-ciIicdyVor 
 any of the stipulations in any such contract ticket, may, at the option of any pas- breacii of 
 senger or cabin passenger interested therein, be heard and determined in a ^"'^'•ract. 
 summary way by the justices of the peace, magistrates, sheriffs, or other officers 
 iiereinafter authorized to adjiulicate on oifences and complaints under this Act, 
 
 wlio are hereby autliorized to try such questions, and if they shall find that a 
 breach of contract has been committed, to award to the complainant such damages 
 
 (c) iSTow Board of Trade, 35 & 33 Vict. c. 73, s. 5, post.
 
 824 
 
 PASSENGERS ACT, 1855, 
 
 Penalty on 
 cabin passen- 
 gers and on 
 masters, &c., 
 omitting to 
 pniiUice con- 
 ti"act tickets. 
 
 Penalty on 
 persons acting 
 Bs ninners 
 -without 
 licence and 
 badge, and on 
 passage brokers 
 cmplojing 
 them. 
 
 Mode of licens- 
 ing and register- 
 ing runners. 
 
 Emigrant run- 
 ner's licence to 
 be renewed 
 annually, 
 
 Penalty on 
 runner for cer- 
 tain acts of mis- 
 conduct. 
 
 Penalty on per- 
 Bons using 
 Jiadges r.ot law- 
 fully issued to 
 them. 
 
 How fresh 
 badges may be 
 obtained in case 
 the old ones arc 
 lost or mutilated 
 
 and costs as tliey may tliink fit, not exceeding in any case the amount of the 
 passage money specified in such contract ticket and ^'20 ; and if such damages and 
 costs be not at once paid, payment thereof shall thereupon he enforced, in the 
 same manner and by the same processes as the payment of sitbsistence money, or 
 the return of passage money, may he enforced under this Act ; provided that if 
 any passenger shall have obtained compensation or redress, under any of the other 
 provisions of this Act, he shall not he entitled to sue under this section for 
 damages for the same matter or cause of complaint. 
 
 74. If any cabin or other passenger shall, on demand of any emigration officer, 
 lefuse or omit to produce his contract ticket, or if any owner, charterer, or master 
 of a ship shall on like demand refuse or omit to produce to any emigration officer 
 in the U. K. the counterpart of any contract ticket issued by them, or on their 
 behalf, for tlie inspection of such emigration officer, and for the puri)oses of this 
 Act, every person so offending against the recpiirements of this section shall for 
 each offence be liable summarily to a penalty not exceeding ^10. 
 
 75. Ajiy person who shall act as an " Emigrant Runner," without having pre- 
 viously been licensed and registered as hereinafter mentioned, or who while so 
 acting shall omit to wear conspicuously on his breast such badge as hereinafter 
 mentioned, or who shall employ as an "Emigrant Rimner" any person not duly 
 licensed and registered, shall for each offence be liable to a penalty not exceeding 
 £o nor less than 20s. 
 
 76. The justices of the peace at any petty sessions held for the district or place 
 within which any person wishing to act as an " Emigrant Runner " is to cany on 
 his business may, upon the recommendation in writing of an emigrant officer or of 
 the chief constable or other head officer of police of such district or place (but not 
 otherwise), grant, if they shall think fit, to such person %\-ishing to act as runner a 
 licence for that purjjose according to the form in Schedule (M.) hereto annexed, 
 and such runner shall within 48 hours thereafter (under a penalty not exceeding 
 4().s. for any default) lodge sttch licence with the nearest emigi'ation officer, 
 who shall register the name and abode of sticli runner in a book to be kept for 
 that purpose, and shall number each name registered in arithmetical progression, 
 and shall supply to sttch rttnner, on his paying a sttm not exceeding 7s. for 
 the same, a badge of such form and descrijation as shall be ajiproved by the said 
 emigration commissioners («). 
 
 77. Every such " Emigrant Runner's " licence shall continue in force ttntil the 
 31st day of December in the year in which it shall be graaited, itnless sooner 
 revoked liy any justice of the peace, for any ofl'ence against this Act, or for any 
 otlier miscondtict committed by the holder of such licence. In case of any 
 renewed licence it shall be sufficient for the emigration officer to note the fact, and 
 the date of the renewal, in his registry book, against the original entry therein of 
 the name of the rttnner holding such rene^yed licence. 
 
 78. If any " Emigrant Rttnner" shall refuse or fail to produce, on demand, his 
 badge for inspection, or to permit any person to take the nttmber thereof, or if he 
 shall fail within 48 hours to give to the emigration officer of the port or place 
 within ■which he is licensed to act, notice in writing of any change in his place of 
 abode, in order that his new abode may be registered, or of the loss of iiis badge, 
 or if he shall mittilate or deface his badge, or wear the same while unlicensed, or 
 wear any other than the one delivered to hun by sttch enugration officer as afore- 
 said, or permit any other person to use liis badge, he shall for each sttch oft'ence be 
 liable to a penalty not exceeding 40s., and to the forfeiture of his license, if 
 the convicting jttstices or magistrate .shall so determine ; and any person retain- 
 ing or using any " Emigrant Runner's" badge not issued to him under the pro- 
 A'isions of this Act, or counterfeiting or forging any sttch badge, shall for each sttch 
 ofl'ence be liable to a penalty not exceeding £5. 
 
 79. Sttch emigration officer as last aforesaid may, if he thinks fit, on payment 
 to hun of the sum of 5s., deliver a new badge to any licensed " Emigrant 
 Rttnner" who shall satisfy sttch officer that he has lost liis original badge, or who 
 shall deliver wp the same in a mtttilated or defaced state. 
 
 It) Xuw Beai-d of Trade, 85 & 30 Vict, c. 73, s. 5, jJOst,,
 
 18 & 19 VICT. c. 119. 825 
 
 80. No " Emigrant Eunner" sliall be entitled to recover from any passage Runners not en- 
 broker any fee, commission, or reward, for or in consideration of any service con- \l^l^^,^^ f^.'^ 
 nected witli emigration, nnless he sliall be acting nndc-r tlie written authority of any passage 
 such passage broker, nor, under a penalty for each offence not exceeding £'j, shall '''•!'.'^"" ""^f'^. 
 
 • T '-^ -. .> ^ • . C 1 i" a1 tlCLlUli Willi Ilia 
 
 taKe or demand from any person about to emigrate any lee or reward lor the pro- authority, nor 
 curing of his passage, or in any way relating thereto. trom emigrants 
 
 81. Every passage liroker shall exhibit and keep constantly exhibited in some their'i^™sage° 
 conspicuous place in his office or jdace of business a correct list, in plain and List of runners 
 
 legible characters, containini;- the names and addresses in full of every person for [^'I'jf/?:''^';'"^;'^, 
 ,o . , ,',-,. °, , . 1 • J. ■ i. 'Jy brokers anu 
 
 the time being holding such authority to act as his agent, or as an emigrant ,,ent to cmigra- 
 runner for him as aforesaid, and sliall on or before the 5th day, or if that day be tiou officers. 
 a Sunday, on or before the 4th day in every month, transmit a true copy of such 
 list, duly signed by him, to the emigration officer stationed nearest to the place of 
 business of such licensed passage broker, and shall report to such emigration 
 officer every discharge or fresh engagement of an agent or of an " Emigrant 
 Eunner" within 24 hours of the same taking place. In case of non-compliance 
 with any of the requirements of this section, the person so offending shall be 
 liable for each offence to a penalty not exceeding £5, nor less than £2. 
 
 82. It shall be lawful for the trustees or "other persons charged with the Trustees of 
 management ol any docks or basins m any port withm the U. Iv. trom wlucli |jyc_iaws tor 
 "Passenger Ships" are despatched to make, and from time to time alter, amend, regulating tiio 
 or repeal, such rules and bye-laws as may be necessary for prescribing the docks, ba',.k"u,,'"','Jf™\' 
 basins, or other places at which persons arriving by sea at such ports for the tending emi- 
 
 purpose of emi^ratiii", or actually emigrating therefrom, shall be landed and f7?nn";?,'.;I'm\,^°^ 
 ii,, ,o °', ,. i."'i n- °i itj- ^ c t ■ licensing emi- 
 
 embarked, and the mode ot their landing and embarkation, and tor licensing graut portera. 
 porters to carry their luggage and otherwise to attend upon them, and for the 
 storing and safe custody of their luggage, and for admitting persons to and 
 excluding persons from access to such docks or basins, and for attaching a penalty 
 not exceeding £b for the breach of any of such rules or bye-laws, such penalty to 
 be sued for and recovered as other penalties are by this Act directed to be 
 recovered, except that instead of an emigration officer such trustees or other 
 persons as aforesaid shall sue for and recover the same : and it shall further be 
 lawtul for such trustees, by theii- officers or servants, or by any police-officer, to 
 arrest and detain any person charged with the breach of any such rule or bye-law, 
 until brought before any justice of the peace, who is hereby authorized to adjudi- Eye-iaws to be 
 cate on the offence in a summary way : provided that no such rules or bye-laws approved by 
 shall take effect until they shall have been approved by one of H. M.'s principal l^t^tg^nd pub- 
 secretaries of state, and published by his authority in the London Gazette, which lix'iiod'inthe 
 publication shall for all purposes be deemed conclusive evidence of such rules and Luiutun Guzcttc. 
 bye-laws, and of the approval thereof by such secretary of state. 
 
 83. And whereas the said emigration commissioners (c) and persons acting ronulty for fal- 
 under their authority issue from time to time certain forms of application and ii\eui!f to obtain 
 other papers for the use of persons desirous of emigrating l;)y their assistance : and passage from 
 whereas it is expedient to afford ad<litional security against the falsiiication or ,^,".;"''' '^^ 
 misuse of such forms and papers, and of any certificate of marriage or of birth or f^^y J,oi4)ua- 
 baptism, or other document or statement adduced in support of any application to tion {b). 
 
 the said commissioners (f) for such assistance : be it therefore enacted, that if any 
 person shall falsely lepresent himself to be or falsely assume to act as the agent 
 of the said commissioners (c), or sliall sell any such form of application, paper, or 
 embarkation order, or shall wilfully make any false representation in any such 
 form of ajiplication, paper, certihcate, or document as aforesaid, or shall forge or 
 fraudulently alter any signature or statement contained therein respectively, or 
 shall personate any person named therein respectively, or shall aid or in any way 
 al)et any person in any such false representation, forge ly, alteration, or persona- 
 tion, the person so offending shall be liable for each such (ifFence to a penalty not 
 exceeding JoO, nor less than £-1 sterling. 
 
 84. All penalties and forfeitures imposed by tliis Act shall be sued for in the Promhu-e foi- 
 U. K. by any emigration officer or his assistant, or by any person authorized eiiames,d;c. 
 
 thereto l)y the said emigration commissioners (c), under the hands of any two of By wiiom penal- 
 ties arc to be 
 recovered. 
 
 {b) See 35 &i 35 Viot. c. 73, s. O,post, [(c) Now Board of Trade, 35 & 36 Vict. c. 73, s. 5, i^ost.
 
 826 
 
 PASSENGERS ACT, 1855. 
 
 By whom pas- 
 sage, subsist- 
 ence, and com- 
 pensation 
 monies may be 
 recovered. 
 
 Tribunal for atV 
 judicatiug on 
 offences and 
 complaints 
 imder this Act. 
 
 tliem, or l)y any collector or comptroller of H. M.'s customs, or by any other officer 
 of H. M.'s customs autliorized thereto in writing by the commissioners of H. M.'s 
 customs, and in any of H. M.'s possessions abroad by any government emigration 
 officer or agent, or by any such collector or comptroller of customs, or other officer 
 of customs so authorized as aforesaid, or by any officer authorized to sue for 
 penalties and forfeitures under this Act by -mi'iting imder tlie hand and seal of the 
 governor of any such possession ; and the said emigration commissioners (a), and 
 the commissioners of H. M.'s customs, and every such governor', are hereby respec- 
 tively empowered to grant such authoritj" as aforesaid : and all sums of money 
 made recoverable by this Act as return of passage money, subsistence money, 
 damages, or compensation, may be sued for and recovered by and for the use of 
 any passenger entitled thereto under this Act, or by any such officer as aforesaid, 
 for and on behalf and to the use of any such j^assenger, or any number of such 
 passengers respectively, and in any case either by one or several informations or 
 complaints. 
 
 85. All penalties imposed and all sums of money made recoverable under this 
 Act, by way of passage money, subsistence money, compensation, or damages for 
 the Ijreach of any stipulation in any contract ticket, shall and may be sued for 
 and recovered before any two or more justices of the peace acting in any part of 
 H. M.'s dominions or possessions in which the offence shall have been committed, 
 or the cause of complaint shall have arisen, or in which the offender or party 
 complaiired against shall happen to be, or acting in any county or borough, or 
 l^lace adjacent to any navigable river or inlet of the sea on which such offence 
 shall have been committed, or cause of complaint have arisen ; and upon informa- 
 tion or complaint made before any one justice of the peace acting as aforesaid, he 
 shall issue a summons, according to the form in the Schedule (X.) hereto annexed, 
 requiring the party offending or complained against to appear at a time and place 
 to be named therein ; and every such siunmons shall be served on the party 
 offending or complaiued against, or shall be left at his last known place of abode 
 or of business, or on board any ship to which he may belong ; and if such party 
 shall not appear accordingly, then (upon proof of the due ser^^ice of the summons 
 by delivering the summons or a copy thereof to the party, or at his last known 
 place of abode or of business, or on board any ship to which he may belong, to 
 the person in charge of any such ship,) any two of such justices so acting as afore- 
 said may either hear and determine the case in the absence of the party, or either 
 of them may issue liis Avarrant for apprehending and bringing sucli party before 
 them, or any two justices so acting as aforesaid ; or the justice before whom the 
 charge shall be made, if he shall have reason to suspect, from information upon 
 oath, that the party is likely to abscond, may issue such Avarrant in the first 
 instance ■UTithout any pre^dous sununons ; and either upon the appearance of the 
 party offending or complained against, or in his absence as aforesaid, any two 
 of such justices so acting as aforesaid may hear and determine the case, either 
 with or without any written information or complaint ; and upon proof of the 
 offence, or of the complainant's claim (as the case may be), either by confession of 
 the party offending or complained against, or upon the oath of one or more 
 credible -sritness or Avitnesses (and the justices are hereby authorized to summon 
 and swear any witnesses Avho may be deemed necessary), it shall be lawful for 
 such justices so acting as aforesaid to convict the off'entler, or to adjudicate upon 
 the complaint, (such conviction or adjudication to be drawn up according to one of 
 the forms of conviction or adjudication contained in Schedule (0.) hereto annexed, 
 or as near thereto as the circumstances of the case will admit,) antl upon every such 
 conviction to order the otlVuder to pay such penalty as they may think proper, 
 not exceeding the penalties herein-before imposed, and upon every such adjudica- 
 tion to order tlie party complained against to pay to the party suing for the same 
 the sum of money or damages stted for, or so much thereof as such justices shall 
 think the complainant justly entitled to, together with, in every case, the costs of 
 the proceedings ; and if the monies and costs mentioned in such conviction ov 
 adjudication be not paid immediately, or within the time limited in the order, it 
 shall be lawful for any two of such justices so acting as aforesaid, liy warrant. 
 
 (c() Xow Board of Trade, see 35 & 36 Vict. c. 73, s. 5, j'osi
 
 18 & 19 VICT. c. 119. 827 
 
 (and altliougli the -WTitteu order of conviction or adjudication, or any minnte 
 thereof, may not have lieen served,) to cause the party ofl'euding to be committed 
 to gaol, there to be imprisoned, witli or -without hard labour, according to the 
 discretion of such justices, for any term not exceeding 3 calendar months, unless P'"°^''-;'° ^^'""^.q, 
 such monies and costs be sooner paid and satisfied : provided always, that in all ceeiiin^are pre-" 
 proceedings taken under this Act for which no form is herein expressly provided, scribed by this 
 it shall be lawful to use forms similar, as nearly as circumstances will admit, to ^'^'^• 
 those contamed in the schedule to the Act 11th & 12th Vict. c. 43. 
 
 86. Every police or stipendiary magistrate, and in Scotland every sheriff or P'^'lice and 8ti- 
 steward and sheriff substitute or steward substitute of a county or stewartry within Irattvini "in^'''^" 
 his own county or stewartry, shall have such and the like powers, privileges, and Scothmd siieriff, 
 functions, and be entitled to exercise such and the like jurisdiction under this ^("liie po^^ers'^lia 
 Act, as any justice or two justices, or justices at petty sessions, have, or is or are justices of tiie 
 entitled to exercise under the provisions of this Act ; and all acts, matters, and peace, 
 things competent to be done under the provisions of this Act by or before any 
 
 justice or tAvo justices of the peace, or justices at petty sessions, or otherwise, may 
 be done by and before any police or stipendiary magistrate, and in Scotland by 
 and l:)efore any sheriff or steward, or sheriff substitute or steward sitbstitute, within 
 his own county or stewartry. 
 
 87. No ol^jection shall be taken or allowed to any complaint, information. No objection to 
 summons, or warrant under this Act, for any alleged defect therein, either in sub- e<mvictiou!i to^ 
 stance or in form, or for any A'ariance between such complaint or information and be <inashcd for 
 the evidence adduced on tlie hearing thereof ; but if any variance shall appear to "'^'•^^^ "^ *"i''"- 
 the justice or justices present and acting at such hearing to be sucli that the party 
 
 so summoned and appearing has been thereby deceived or misled, it sliall l)e lawfid 
 for sttch jtistice or justices, upon such terms as he or they shall think fit, to adjourn 
 the hearing of the case to some future day, and in the meantime to commit the 
 defendant to such safe custody as the said justice or jitstices may think fit, or to 
 discharge him upon his recognizance, with or without sitreties, to appear at such 
 time and place as may be appointed : no conviction, order, adjudication, or other 
 proceeding under or in pursuance of this Act shall be quashed or vacated for want 
 of form. 
 
 88. All penalties imposed by this Act shall, when recovered, and notwith- Application of 
 standing any local Act of parliament to the contrary, be paid to the emigration penalties, 
 officer or officer of customs at whose suit the same shall have been recovered, for 
 
 the use of H. ]\I. and her successors, and if recovered in the colonies shall be paid 
 
 over by the party receiving the same into the colonial treasury, and shall form 
 
 part of the general revenue of the colony, and if recovered in the U. K. shall be 
 
 paid over to the said emigration commissioners, (b) if the party at whose suit the 
 
 same shall have been recovered l^e an emigration officer or his assistant, and to 
 
 H. M.'s commissioners of customs if the party at wdiose suit the same shall have 
 
 been recovered be an officer of customs, to be by such emigration commissioners (b) 
 
 and commissioners of customs respectively dttly accounted for ; and all such 
 
 penalties as may be recovered in the U. K. shall be appropriated to such purposes 
 
 and in such manner as the lord high treasurer or the commissioners of H. M.'s 
 
 treasury may, from time to time, direct and appoint : provided always, that it sliall Justices may 
 
 be lawful for the justices of the peace who shall impose any such ]3enalty at the "ation out of"'^' 
 
 same time to direct, if they shall think fit, that a part, not exceeding one moiety penalties to 
 
 thereof, be apjilied to compensate any passenger for any wrong or damage which P'U'ty aggrieved. 
 
 he may have sustained by the act or default in respect of which such penalty or 
 
 forfeiture shall have been imposed. 
 
 89. If in any suit, action, prosecution, or other legal proceeding under this Act, Burden of proof 
 any question shall arise whether any sliip was or Avas not exempted from the pro- c'iVi'iiihig^excini> 
 idsions of this Act or any of them, the btirden of proving that such ship was so tiou from Act. 
 exempted shall lie on the party claiming the benefit of the exemption, and failing 
 
 such proof it shall, for any such purpose as aforesaid, be taken and adjudged that 
 
 the ship did come within the provisions of this Act : and it sliall not be necessary. Proof of 
 
 in any information, complaint, or other process or proceeding, to negative any liegatives. 
 
 exemption, proviso, or condition contained in any section of this Act on which 
 
 such information, complaint, or other process or proceeding shall be framed, 
 
 (6) Now Board of Trade, see 35 & 36 Tict. c. 73, s. 5, 2^ost.
 
 828 
 
 passenCtEks act, 1855, 
 
 Troof of a party 
 being an 
 emig- ration 
 oflicer. 
 
 Pasficngci's 
 suing not 
 incompetent 
 witnessesi 
 
 Tender of 
 amenda. 
 
 Limitation of 
 actions againi<t 
 otticers execut- 
 ina the Act. 
 
 Defendant 
 may plead the 
 general issue, 
 
 &LC. 
 
 neither shall it he necessary for the complainant to prove the negative, bnt the 
 defendant may prove the aifii-mative thereof, if he will have advantage of the 
 same. 
 
 90. If in any proceeding before any justice or justices of the peace under this 
 Act, or upon any action, siiit, or other proceeding whatsoever, against any person, 
 for anything done either contrary to or in pursuance of this Act, a question should 
 arise whether any person is an emigration otticer or assistant emigration officer, or 
 an officer of customs, vivd voce evidence may be given of such fact by the officer 
 himself, and shall be deemed legal and sufficient evidence. 
 
 91. Any passenger suing luicler this Act for any sum of money made recover- 
 able by this Act as passage money, subsistence money, or compensation, or damages, 
 shall not be deemed an incompetent witness in any proceeding for the recovery 
 thereof, notwithstanding the same, if recovered, shall be applicable to his own use 
 and benefit. 
 
 92. No plaintiff shall recover in any action against any emigration officers, his 
 assistant, government emigration agent, or officer of customs or other person, for 
 anything done in pursuance of this Act, if tender of sufficient amends shall have 
 been made before such action brought, or if, after action brought, a sufficient sum 
 of money shall have been paid into court, by or on behalf of the defendant. 
 
 93. No action or suit shall be commenced against any emigration officer, his 
 assistant, government emigration agent, officer of customs, or other person, for any- 
 thing done in pursuance of or under the authority of this Act, until 10 clear days' 
 notice in writing, specifying distinctly the cause of action, has been given to the 
 officer, agent, or person as aforesaid against whom such action or suit is intended 
 to be brought, nor after 3 calendar months next after the act committed and men- 
 tioned in such notice for which such action or suit shall he so broi^ght ; and every 
 such action shall be brought, laid, and tried where the cause of action shall have 
 arisen, and not in any other place ; and the defendant in such action or suit may 
 plead the general issue, and give this Act and any special matter in evidence, at 
 any trial wliicli shall be had thereupon ; and if the matter or thing shall appear 
 to have been done under or by virtue of this Act, or if it shall appear that such 
 action or suit was brought before 10 clear days' notice thereof given as aforesaid, 
 or if any action or suit shall not be commenced within the time hereinbefore 
 limited or shall be brought or laid in any other place than as aforesaid, then the 
 jiuy shall find a verdict for the defendant therein ; antl if a verdict shall be found 
 for such defendant, or if the plaintift" in such action or suit shall become nonsuited, 
 or suffer a discontinuance of such action, or if upon any demurrer in stich action 
 judgment shall be given for the defendant thereon, then and in any of the cases 
 aforesaid such defendant shall recover frdl costs of suit as betAveen solicitor and 
 client, and shall have such remedy for recovering the same as any defendant may 
 hiwe for his costs in any other case by law. 
 
 94. Where no time is expressly limited within which any complaint or informa- 
 tion is to be made or laid for any breach or non-performance of any of the re(|uire- 
 ments of this Act, the complaint shall be made or the information laid within 12 
 calendar months ii'om the time when the matter of such complaint or information 
 respectively arose, or in case the master of any ship is the ott'ender or party com- 
 plained against, within 12 calendar months next after his return to the country in 
 which the matter of complaint or information arose. 
 
 95. And whereas it is expedient to provide in certain cases for the carriage of 
 passengers by sea from H. M.'s possessions abroad; be it therefore enacted as 
 
 Colonial voyages follows : for the purposes of this Act the tenn " Colonial Voyage," shall signify 
 deiincd. iiiiy voyage from any place within any of such possessions (except the territories 
 
 under the government of the East India Company and the island of Hong Kong) 
 to any place whatever, where the distance between such places shall exceed 4()0 
 nules, or the duration of the voyage, to be prescribed as hereinafter mentioned, 
 shall exceed 3 days. 
 
 96. This Act shall apply, so far as the same is applicable, to all ships carrying 
 passengers on any such " Colonial Voyage," except as to such parts of the Act as 
 
 except "as relates relate to the following matters ; (tliat is to say,) 
 to matters herein i. To passage brokers and their licenses : 
 
 2. To passengers' contract tickets : 
 
 3. To euiiLTrant runners : 
 
 Cost, 
 
 Limitation of 
 legal imicced- 
 ings generally. 
 
 Colonial 
 Voijaues. 
 
 This Act to 
 ainily to all 
 ci>lonial voyages, 
 
 named.
 
 18 & 19 VICT. 0. 119. 829 
 
 4. To the giving bond to her Majesty : 
 
 5. To the keeping on board a copy of this Act : 
 
 6. To orders in council reguhxting emigration to the U. K., or prcBcriliing rules 
 
 for promoting health, cleanliness, order, and ventilation : 
 Provided that if the prescribed duration of any "Colonial Voyage" be less than ^^^j'!"^ *'°'°!"*'^.^ 
 3 weeks, then, in addition to the matters lastly hereinbefore excepted, the tiian Uirco 
 provisions of this Act shall not extend or apply, so far as they relate to the follow- wooks, tins Act 
 
 i T • . / i\ J.J..// •^ not to npiily to 
 
 mg subjects ; (namely,) subjects hcl-ein 
 
 The construction or thickness of the decks : named. 
 
 The berths and berthing : 
 
 The height between decks : 
 
 Privies : 
 
 Hospitals : 
 
 Light and ventilation : 
 
 Manning : 
 
 Passengers' stewards : 
 
 Passengers' cooks and cooking apparatus : 
 
 The surgeon, and medicine chest : 
 
 The maintenance of passengers for 48 hours after arrival : 
 Provided also, that in the case of such "Colonial Voyages" whereof the prescribed 
 duration is less than 3 weeks, the recjuirements of this Act respecting the issue of 
 provisions shall not, except as to the issue of water, he applicable to any passenger 
 who may have contracted to furnish his o^\^l provisions. 
 
 97. It shall be lawful for the governor of each of H. M.'s possessions abroad, by Govornor of 
 any proclamation to be by him from time to time issued for that purpose (which fj'y?".oci;"''^a- 
 shall take effect from the issuing thereof), to declare what shall lie deemed for the tion, deciaro 
 jnirposes of this Act to be the length of the voyage of any ship carrying passengers 'f "^]^ "f 
 from such possession to any other place whatsoever, and to prescribe such scale of pJ-osc'J.ibc gcj^ie 
 diet for the use of the passengers during the A'oyage as he shall think proper, and of diet, medi- 
 nlso to declare what metlicines, medical comforts, medical instruments, and other medlcarcom- 
 matters shall be deemed necessary for the medical treatment of the passengers forts. ' 
 during such " Colonial Voyage ;" and the provisions and ren[uirements of every 
 
 such proclamation shall be enforced in all H. M.'s dominions as if they were 
 incorporated in this Act, and in like manner as the provisions of this Act may be 
 enforced ; and a copy of any such proclamation, purporting to be under the hand Copies of pro- 
 of the governor of the colony wherein the same may have been issued, and under °|f hQ\*.p"g'^ °n\ ■ , 
 the public seal of such colony, shall in any part of H. M.'s dominions wherein the evidcuce. 
 .same shall be produced be received as good and suthcient evidence of the due 
 issuing and of the contents of such proclamation unless it shall be proved that 
 such copy is not genuine. 
 
 98. It shall be lawful for the governors of any such possessions respectively to Provision for 
 authorize such person or persons as they may think ht to make the like survey ^^'T'^.y "io''-''!f 
 and examination of " Passenger Ships" sailing from such possessions respectively and forappoiut- 
 as is hereinl)efore required to be made by two or more competent surveyors in J"S'^"''S''^'^"« 
 respect of "Passenger Ships" sailing from the U. K., and also to authorize, in ^^^^'''^°' 
 
 such cases as to such governors may seem proper, any competent person to act as 
 medical practitioner on board any " Passenger Ship" proceeding on a " Colonial 
 Voyage." 
 
 99. This Act shall not apply to any of the territories or places under the Power to the 
 government of the East India Company : it shall, however, be la^vful for the SeneraTof India 
 [fovernor-general of India in council, from time to time, by any Act or Acts to be Fn council, by ' 
 passed for that purpose, to declare that this Act or any part thereof shall apply to ■''"J'.-^.'^t*? A": . 
 the carriage of passengers upon any voj-age from any ports or places within such |uiTpose!^to ''^ 
 territories, to be specified in such Act or Acts, to any other places whatsoever, to adoiit this Act 
 be also specified in such Act or Acts ; and also in like manner to authorize the t*,',^,nako^i-ni"s 
 substitution, as respects such voyages, of other articles of food and provisions for respecting food, 
 those hereinbefore enumerated ; and to declare the rule of computation by which I'.i^sengers 
 the length of any such voj-age shall lie estimated ; and to determine the persons or '""^•''°""''' "• 
 officers who in such territories shall be entitled to exercise or perfin™ the powers, 
 functions, or duties hereinbefore given to or imposed upon the emigration ofiicers 
 
 and officers of customs in the U. K., and to authorize the employment on board 
 any ship of a medical practitioner duly qualified by law to practise as a physician,
 
 830 
 
 PASSENGEES ACT, 1855, 
 
 And to declare 
 in wliat maniior 
 lionaltios, &c., 
 may be sued foi- 
 ami recuvored. 
 
 Indian Act may 
 be enforced in 
 the colonies in 
 like manner as 
 this Act. 
 
 Voyaqps to the 
 U.K. 
 
 List of pas- 
 pengers brought 
 into the U. K. 
 to be delivered 
 by the master of 
 tiie ship to the 
 emigration 
 officer. 
 Penalty for 
 neglect. 
 
 Penalty on 
 masters for 
 having on board 
 a greater 
 number of 
 persons than 
 proscribed by 
 section 14 of 
 this Act. 
 Provisions and 
 water to be 
 issued to pas- 
 sengers brought 
 into the U. K. the 
 same as in ships 
 carrying pas- 
 sengers from 
 the U. K. 
 Penalty for 
 default. 
 
 Schedule to 
 be part of the 
 Act. 
 
 surgeon, or apotlieccary witliin gucli territories ; and to declare for the purposes of 
 this Act the space necessary for passengers, and the age at which two cliihlren 
 shall he considered equal to one statute adult, in ships that may clear out from 
 any port or place witliin such territories ; and also to declare in what manner, and 
 before what authorities, and by what form of proceedings, the penalties imposed 
 and the sums of money made recoverable by this Act, shall be sued for and 
 recovered within such territories, and to what uses such penalties shall be applied : 
 and on the passing of such Indian Act or Acts, and whilst the same shall remain 
 in force, all such parts of this Act as shall be adopted therein shall apply to and 
 extend to the carriage of passengers upon such voyages as in the said Indian Act 
 or Acts shall be specified. The provisions of such Indian Act shall be enforced 
 in all H. M.'s possessions in like manner as the provisions of this Act may be 
 enforced : every such Indian Act shall be subject to disallowance and repeal, and 
 shall in the same manner be transmitted to England, to be laid before both houses 
 of parliament, as in the case of any other law made by the governor-general in 
 council. 
 
 100. The master of every ship bringing passengers into the U. K. from any 
 place out of Eitro]3e, and not within the Mediterranean Sea, shall, within 24 hours 
 after arrival, deliver to the emigration officer or his assistant, or in their absence 
 to the chief officer of customs at the joort of arrival, a correct list signed by such 
 master, and specifying the names, ages, and callings of all the passengers em- 
 barked, and also the port or ports at which they respectively may have embarked, 
 and showing which if any of them, may have died, with the supposed cause of 
 death, or been born on the voyage ; and if any master shall fail so to deliver such 
 list, or if the same shall be Avilfully false, he shall, on conviction, as hereinbefore 
 mentioned, be liable to a penalty not exceeding £50. (a) 
 
 101. If any ship bringing passengers into the U. K. from any place ont of 
 Europe shall have on board a greater number of passengers or persons than in the 
 proportions respectively prescribed in the 14th section of this Act for ships carry- 
 ing passengers from the U. K., the master of such ship shall be liable, on such 
 conviction as hereinbefore mentioned, to a penalty not exceeding £\0 nor less than 
 £b for each such person or statute adult constituting any such excess. 
 
 102. The master of every passenger ship bringing passengers into the U. K. from 
 any place out of Europe shall make to each statute adult during the voyage, 
 including the time of detention, if any, at any port or place before the termina- 
 tion thereof, issues of x^ure water and of good and wholesome provisions, in a sweet 
 condition, in quantities not less in amount than is prescribed in the 35th 
 section of this Act for passengers proceeding from the U. K. ; and in case of non- 
 compliance with any of the rec^nirements of this section, the master of such shij) 
 shall, on such conviction as hereinbefore mentioned, be liable for each offence to a 
 penalty not exceeding £50. 
 
 103.' The schedules to this Act shall be deemed to be part of this Act, and all 
 the directions therein contained shall be duly followed and enforced, under a 
 penalty not exceeding £10 on the person failing to obey the same respectively. 
 
 SCHEDULES to which the foregoing Act refers. 
 
 SCHEDULE (A.) 
 
 Repealed by Statute Law Revision Act, 1875. 
 
 («) The rest of this section is repealed by 37 & 38 Vict. c. 88, s. 54 ; see ante, p. C97, n.
 
 18 & 19 Vict. c. 119. 
 
 S31 
 
 SCHEDULE (B.) 
 Form op Passengers List. 
 
 Ship's 
 Name. 
 
 Master's Name. 
 
 Tons per 
 Register. 
 
 Aggregate Number of 
 
 superficial feet in the several 
 
 compartments set apart for 
 
 Passengers other than 
 
 Cabin Passengers. 
 
 Total Number of Statute Adults 
 
 exclusive of Master, Crew, ami 
 
 Cabin Passengers, which the 
 
 Ship can legally carry. 
 
 Wliero 
 Bouiul. 
 
 I liereby certify, that the provisions actually laden on board this .ship are sufticient, 
 according to the rec|uirenients of the Passengers Act, for statute adults for a voyao'e 
 
 of days. 
 
 (Signatiu-e) ____Master. 
 
 Date 185 
 
 i^AMES AND Descriptions op Passengers. 
 
 Ports 
 
 Names 
 of Pas- 
 sengers. 
 
 Age of each Adult of 12 years 
 and upwards. 
 
 Children 
 between 1 and 
 
 Infants. 
 
 §■^0 . 
 
 o.S g 
 
 O b OT 
 
 1 c-^ 
 
 o 
 
 2 o - 
 
 MM 
 
 ■3 §J 
 
 of Em- 
 
 Married. 
 
 Single. 
 
 12 years. 
 
 
 
 
 Male 
 
 Female 
 
 Male 
 
 Female 
 
 Male 
 
 Female 
 
 Male 
 
 Female 
 
 o S'2 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Summary. 
 
 
 Number of Souls. 
 
 Eriual 
 
 to Statute 
 
 Adults. 
 
 
 English. 
 
 Scotch. 
 
 Irish. 
 
 Total. 
 
 Adults 
 
 Children between 1 and 12 
 
 Infants 
 
 
 
 
 
 
 Total 
 
 
 
 
 
 
 We hereby certify that the above is a correct list of tlie name.s and descriptions of all the 
 passengers who embarked at the port of 
 
 (Signed) Master, 
 
 Date 
 
 (Countersigned) 
 185 
 
 _Emigration Officer. 
 .Officer of Customs at_ 
 
 N.B. — Lines should he ruled in the same Form for any additions to the 'list after the ship first 
 clears out; and similar certificates be subjoined to such additions, according to the reqidrements 
 of the Act,
 
 832 
 
 PASSENGERS ACT, 1855, 
 
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 834 
 
 PASSENGERS ACT, 1855, 
 
 SCHEDULE (C). 
 
 Form of Boxd to be given by the Master and by the Owner or 
 Charterer of a " Passenger Ship." 
 
 (a) Insert hero 
 tlie Cliristian 
 and surnames, in 
 fnll, wiih occu- 
 pations antl ad- 
 dresses of each 
 of tlie two 
 obligors. 
 
 m See 26 & 27 
 Vict. c. 51, s. 17. 
 
 (c) The claiTse 
 within brackets 
 is to be inserted 
 only when the 
 ship is to call at 
 an intenuediate 
 port to take in 
 water as pro- 
 vided by s. 34 of 
 the Act. 
 
 (d) Now Board 
 of Trade, sec 
 35 & 36 Vict. 
 c. 73, s. 5. 
 (f ) This clause 
 to be Inserted 
 only in tlie case 
 of a foreign 
 passenger ship 
 proceeding to 
 any of tlie 
 British colonies. 
 
 (/) Insert names 
 and addresses in 
 full of the 
 
 ■witnesses. 
 
 07) Certificate to 
 be signed by the 
 chief officer of 
 customs and for- 
 warded ^\ith the 
 bond to the 
 colony, accord- 
 ing to s. 04 of 
 the Act, 
 
 Kno-w all men lay these presents, tliat we (a) are held and 
 
 firmlj^ bound' unto our sovereign by the grace of God, of the 
 
 United Kingdom of Great Britain and Ireland defender of 
 
 the faith, in the sum of ^2,000(6) of good and lawftil money of Great 
 Britain, to be paid to our said the 
 
 heirs and successors ; to which payment well and truly to be made we bind 
 ourselves and every of us, jointly and severally, for and in the whole, our 
 heirs, executors, and administrators, and every of them, firmly by those 
 presents. Sealed with our seals. Dated this day of 
 
 185 . 
 Whereas by the " Passengers Act, 1855," it is amongst other things enacted, 
 that l)efore any " Passenger Ship" shall clear out or proceed to sea, the master, 
 together -with the owner or charterer of the ship, or in the absence of such o■\\^^er 
 or charterer, or if the master be the owner or charterer, one other good and suffi- 
 cient person, to be approved by the chief officer of customs at the port of clearance, 
 shall enter into a bond to ]\Iajesty, heirs and successors, in the sum of 
 
 .£2,000 : (6) 
 
 Now the condition of this obligation is such, that if the ship whereof the 
 
 above-bounden is master, bound to is in all respects seaworthy, (c) 
 
 [and if the said ship shall call at the port of and there shall be shipped 
 
 on board at such port pure water for the use of the passengers, sufficient in quan- 
 tity to aftbrd an allowance of three cpiarts daily to each statute adult for the 
 period of days on the A'oyage from such port to the final port or place of 
 
 discharge of such vessel,] and if, (notwithstanding any penalty by the said Act 
 imposed, and whether the same may have been sued for and recovered or not,) all 
 and every the requirements of the said Passengers Act, 1855, (except such of them 
 as relate exclusively to passage brokers and runners) and of the emigration com- 
 missioners (d) acting in the manner ])rescribed by the said Act, and of any order 
 passed by her Majesty in council relating to " Passenger Ships" and now in force, 
 shall in all respects be well and truly performed (e) [and if the master for the time 
 being of the said ship shall submit himself, in like mamier as a British subject 
 being the master of a British passenger ship, to the jurisdiction of the tribunals in 
 Majesty's possessions abroad, empowered by the said Act to adjudicate 
 on offences committed against the said Act,] and if moreover all penalties, fines, 
 and forfeitures which the master of such ship may be adjudged to paj^ for or in 
 resi^ect of the breach or non-fulfilment of any of such requirements as aforesaid 
 shall be well and truly paid, and if all expenses incurred by the secretary of state 
 or any governor or British consular officer under the provisions of tlus Act shall 
 also be well and truly paid, then this obligation to be void, other-wise to remain 
 in full force and virtue. 
 
 Signed, sealed, and delivered by the above-boimden and 
 
 in tiie presence of (/) 
 
 (g) [I hereby certify, that the above bond was duly signed, sealed and delivered 
 according to the law of Great Britain by the said master of the said ship 
 
 and by the said {other obligor) ]. 
 /c. • i \ 1 Chief Ofiicer of Customs 
 
 Date 185 .
 
 18 & 10 VICT. 0. 119. 835 
 
 SCHEDULE (D). 
 
 Form op Passage Broker's Annual Bond, with Two Sureties, to be 
 approved by the emigration officer at the nearest port. 
 
 Know aU men by these presents, that we, A. B. (h) of C. D. of, cinithuf and 
 
 die and E. F. of, d:e. are held and firmly bound surnames in full, 
 
 unto our sovereit^n by the grace of God, of the United Kingdom of ^,|*'XP'J';^°"* 
 
 Great Britain and Ireland defender of the faith, in the sum of ^aei/of th'o 
 
 ^1,000 of good and lawful money of Great Britain, to be paid to our said parties. 
 
 the heirs and successors ; to which payment 
 
 well and truly to be made we bind ourselves and every of us jointly and 
 
 severally, for and in the whole, our heirs, executors, and administrators and 
 
 every of them, firmly by these presents. Sealed with our seals. Dated this 
 
 day of 185 . 
 
 Whereas by the " Passengers Act, 1855," it is amongst other things enacted, 
 
 that no person whatever, save as therein excepted, shall directly or indirectly act 
 
 as a passage broker in respect of passages from the United Kingdom to any place 
 
 out of Europe, and not being within the Mediterranean Sea, or shall sell or let, 
 
 or agree to sell or let, or be in anywise concerned in the sale or letting of passages 
 
 in any ship, whether a "Passenger Ship" or otherwise, proceeding from the 
 
 United Kingdom to any such place as aforesaid, unless such person, with two good 
 
 and sufiicieiit snreties, to be approved by the emigration oflicer at the port nearest 
 
 the place of business of such person shall have previously entered into a joint and 
 
 several bond to her Majesty, her heirs and successors, in the sum of ^1,000 ; 
 
 and whereas the said C. D. and E. F. have been duly approved by the proper 
 
 emigration officer, as sureties for the said A. B. : 
 
 Now the condition of this obligation is such, that if the above-bounden A. B., 
 and every agent whom he may employ in his business of a passage broker, shall 
 well and truly observe and comply with all the requirements of the said recited 
 Act, so far as the same relate to passage brokers, and further shall well and truly 
 pay all fines, forfeitures, and penalties, and also all sums of money, by way of 
 subsistence money, or of return of passage money and compensation to any 
 passenger, or on his account, together with all costs which the above-bounden 
 A. B., or any of his agents as aforesaid, may at any time be adjudged to pay 
 under or by virtue of any of the provisions of the said recited Act, then and in 
 such case this obligation "to be void, otherwise to remain in full force. 
 
 Signed, sealed, and delivered by the above-bounden A. B., C. D., and E. F., in 
 
 the presence of (i) (*) Insert the 
 ■■• ^ ' names and ad- 
 dresses in full of 
 — the witnesses. 
 
 N.B.— This bond is to be executed in duplicate in the presence of and to be 
 attested l)y an emigration officer or his assistant, or an officer of customs, or a 
 magistrate, or a notary public. One part is to be deposited -with the emigration 
 conimissioners (h) in London, and the other part with the emigration ofiicer at the (7.-) Now Board 
 port nearest to the place of business of the broker. Each member of a firm or o^ l^g'^g'^yjct^ 
 partnership who acts as a passage broker must give a separate bond, with two c. 73, s. 5. 
 sureties. 
 
 [The bond is exempt from stamp duty, but must be renewed annually Avith 
 licence.] 
 
 h2
 
 836 PASSENGERS ACT, 1855, 
 
 SCHEDULE (E). 
 
 Form op Passage Broker's Licence.* 
 
 (a) The Clirls- A. B. («) of in the lia\ing shown to the satisfaction of me 
 
 tian and snr- (o>- us) the nnclersignecl, that lie hath given hond to ]\Lajesty, as by the 
 
 "^ia^tiicartdress " Passengers Act, 1855," required, and also given fourteen days jn-evious notice to 
 and trade or the emigration commissioners {h) of his intention to make application for a licence 
 occupation of ^q carry on the business of a passage broker, in respect of passages fi'om the United 
 ingfortucf^'^'^' Kingdom to any place out of Europe, and not being within the Mediterranean 
 licmce, must be Sea,' I (or we), the undersigned, having had no sufficient cause shown to me (or 
 ^'^rted'^^^if'a ^^s), and seeing no valid reason why the said A. B. should not receive such licence, 
 member of a do hereby licence and authorize the said ^. JS. to carry on the business of a passage 
 firm, the Chris- "bpoijei. .^g aforesaid until the end of the present year, and tlm'ty-one days after- 
 iiames"of''aiVthe wards, unless this licence shall be sooner determined by forfeiture for misconduct 
 members must on the part of the said A. B., as in the " Passengers Act, 1855," is provided, 
 be given. 
 
 Boanrof Trade ; Given under my hand and seal {or our respective hands and seals), tliis 
 35 & 36 Vict. ' tiay 185 at 
 
 ^- ^^' ^' ^' { Justices of the Peace, police, or sti- 
 
 . / . \ ) pendiary magistrate, or sheriff, or 
 
 bignatiire (,L.s.) < gte-^^-^rd, or sheriff w steward sub- 
 
 ' stitute, as the case may he. 
 
 *N.B. — Each member of a firm or partnership who acts as a passage broker 
 must have a separate licence. 
 
 SCHEDULE (F). 
 
 Form op Notice to be given to the Emigration Commissioners (6) by 
 Justices granting a Licence. 
 
 Gentlemen, 
 This is to give you notice, that we {or I), the undersigned, did on the 
 (f) Insert the day of 185 license A. B. oi {c) to carry on the business of a 
 
 Christian and ^^^ passage broker, under the provisions of the " Passengers Act, 1855." 
 
 ■with the address 
 
 and occupation . 
 
 of the party. Signatures ( Justices of the Peace, or as 
 
 ( the case may he. 
 
 Place 
 
 Date 
 
 To the Emigration Commis- 
 missioners {h), London,
 
 18 & 19 VICT. c. 119. 
 
 837 
 
 SCHEDULE (G). 
 
 Form of Notice to bk given to the Emigration Commissioners {h) by any 
 Applicant tor a Passage Broker's Licence. 
 
 Gentlemen, 
 1, A. B. (d) of in do hereby give you notice, that it is my inten- 
 
 tion to apply, after the expiration of fourteen clear clays from the putting of this 
 notice into the post, to the justices to be assembled in petty sessions to be held (e) 
 (or to the police or stipendiary magistrate for the city or borough or 
 district of or if in Scotland to the sheriff or steward of as the 
 
 case may he,) for a licence to carry on the business of a passage broker under the 
 provisions of "The Passengers Act, 1855." 
 
 Signature . 
 
 Date 
 
 (d) The Chris- 
 tian names and 
 surname in full, 
 with the address 
 and trade or oc- 
 cupation of tlie 
 party applying 
 for a licence, 
 must be here 
 correctly in- 
 serted. 
 
 (e) The place or 
 district in whic'r 
 the pariy giving 
 the notice has 
 his place of 
 business. 
 
 To the Emigration Commissioners (/;-), } 
 London. ) 
 
 SCHEDULE (H). 
 
 Form of Notice to be given by the Justices to the Emigration 
 Commissioners (/i) of Forfeiture of a Passage Broker's Licence. 
 
 Gentlemen, 
 This is to give you notice, that the licence granted on the day of (■/■•» ti rh •• 
 
 185 to A. B. (/) of in to act as a passage broker, was on the tiauand^sur-^'^' 
 
 day of now last j)ast, duly declared by me (or us) the under- names in full, 
 
 signed justices of the peace in petty sessions assembled, to be forfeited (g). 
 
 Signature_ 
 Place and date 
 
 .185 
 
 To the Emigration Commissioners (h), 
 London. 
 
 with the address 
 and trade or 
 occupation of 
 the party to be 
 here inserted. 
 
 to) Here state 
 generally the 
 reason of for- 
 feiture. 
 
 (/t) Now 
 Board of Trade ; 
 35 & 36 Vict. 
 c. 73, s. 5. 
 
 SCHEDULE (I). 
 Form op Appointment of Passage Broker's Agent. 
 
 Directions. 
 
 1,A.B, of, cC-c. (or as the case may he) one of the partners and on behalf of the J^per piaJ^'s 
 hmi of, d-c. (name all the partners and the style of the firm) carrying on the business the Christian 
 of at do hereby nominate and appoint you, G. D., of cC-c, to act ""'i ■'^'j™'^}!'^'* '" 
 
 the 
 Act, 
 
 Signatui'e in full . respectively. 
 
 Place and date ^185 
 
 at do hereby nominate antl appoint you, u. JU., oi ct-c, to act -^'-f ■;;'.jt;;'"]7c '" 
 
 my agent and on my behalf in the sale or letting of -jjassages and otherwise in correct addresses 
 e business of a passage broker, according to the provisions of " The Passengers and designations 
 
 , 1 Qrr J} 01 tne COP-StltU- 
 
 Ct, I 000, cut and a.scnt 
 
 Counter-signatiu'e. 
 
 Emigration officer at the 
 Port of .
 
 838 
 
 PASSENGEES ACT, 1855, 
 
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 18 & 19 VICT. c. 119. 
 
 839 
 
 Ship. 
 
 Counterpart of Passenrjcr's 
 Contract Ticlcct. 
 
 This part of the contract 
 ticliet is to be separated from 
 tlie other, anrl to be delivered 
 by the passenger to tlie emi- 
 gration officer at tlie port of 
 embarkation, (or, if no such 
 officer, to the officer of cus- 
 toms,) or to any one ap- 
 pointed by him to receive it, 
 under a penalty not exceed- 
 ing £10. 
 
 SCHEDULE (L.) 
 
 Passenger's Contract Ticket. 
 
 These direc- 1. A contract ticket in this form must be given to every 
 lions, and the passenger engaging a passage from the United Kingdom 
 " notices to pas- ^^ ^j^„ pi^^e out of Europe, and not being within the 
 ^orrfmrioS Mediterranean Sea. ^ .^, 
 
 mu!ft appear ou, 2- The victualling scale for the voyage must be prmted 
 eacii ' contract in the body of the ticket. 
 
 3. All the blanks must be correctly filled m, and the 
 ticket must be legibly signed with the Christian names 
 and surname and address in full of the party issuing the 
 same. 
 
 4. The day of the month on which the passengers 
 are to embark must be inserted in words and not in 
 figures. 
 
 5. When once issued, this ticket must not be withdrawn 
 from the passenger, nor any alteration, addition, or erasure 
 made in it. 
 
 ticket. 
 
 Contract Ticket. 
 
 I engage that the persons 
 mentioned below shall be 
 provided with a steerage pas- 
 sage to , and be landed 
 at the port of in 
 
 in the ship 
 of tons, with not less 
 
 than ten cubic feet for luggage 
 for each statute adult, and 
 shall be victualled during the 
 whole voyage according to 
 the dietary scale prescribed 
 by law. The ship to receive 
 her passengers at on 
 
 the day of 
 
 185 . Passage money, in- 
 cluding Government dues, if 
 any, and all charges of land- 
 h>g £ 
 
 0. 
 
 ® Ship 
 ^for 
 
 & 
 
 & 
 
 
 fcD 
 
 CO 
 
 
 
 
 
 oi tons register, to take in passengers at 
 
 the day of 185 . 
 
 I engage that the person named in the raai'gin hereof 
 shall be provided with a steerage passage to, and shall be 
 landed at, the port of in in the ship 
 
 with not less than ten cubic feet for luggage for 
 each statute adult, and shall be victualled during the 
 voyage, and the time of detention at any place before its 
 termination, according to the subjoined scale, for the sum 
 of £ , including Government dues before embarka- 
 
 tion, and head money, if any;, at the place of landing, and 
 every other charge except freight for excess of luggage 
 beyond the quantity above specified ; and I hereby 
 acknowledge to have received the sum of £ in 
 
 r full 1 X 
 
 { part} PayiBent. 
 
 To be siirned in 
 full by the 
 party issuing 
 the ticket. 
 
 The following quantities, at least, of water and provisions, 
 (to be issued daily,) will be supplied by the master of the 
 ship, as required by law ; viz., to each statute adult 
 three quarts of water daily, exclusive of what is neces- 
 sary for cooking the articles required by the Passenger 
 Act, to be issued in a cooked state ; and a weekly allow- 
 ance of provisions according to the foUowhig scale : 
 
 [Here insert the Victualling Scale intended to be used 
 on the voyage. This must be either the scale pre- 
 scribed in the 35th section of the Passengers Act, 
 1855, or that scale modified by the introduction of 
 articles authorized by the Act to be substituted for 
 oatmeal, rice, and potatoes.] 
 
 [N.B.— If mess utensils and bedding are to be 
 provided by the ship, the stipulation must be inserted 
 here.] 
 
 Signature in full 
 
 Place and date . 
 
 [If signed by a broker or agent, state on whose behalf.] 
 
 Deposit £ 
 
 Balance £ to be paid at 
 
 Total £ 
 
 * Insert number of souls 
 and of statute adults re- 
 spectively. 
 
 Notices to Passengers. 
 1. If passeno-ers, through no default of their own, are not received on 
 board on the d"ay named in their contract tickets, or fail to obtain a pas- 
 sage in the ship, they should apply to the Government emigration officer 
 at^the port, who will assist them in obtaining redress under the Passengers 
 Act. 
 
 •2. Passengers i^hould carefully keep this part of their contract ticket 
 till after the end of the voyage. 
 
 N.B.— This contract ticket is exempt from stamp dutr.
 
 840 
 
 PASSENGERS ACT, 1855, 
 
 SCHEDULE (M.) 
 
 fa) The Cliris- 
 tlan and sur- 
 names in fall, 
 •with the address 
 of the party 
 applying for the 
 licence, must be 
 here correctly 
 inserted. 
 
 (b) City, town, 
 or district in 
 which the emi- 
 grant i-unner is 
 to carry on his 
 business. 
 
 Form of Emigrant Runner's Annual Licence. 
 
 A. B. (a) of in the having 
 
 made application, in writing to us, the undersigned justices of the peace assembled 
 in petty sessisons, for the (6) of to grant 
 
 to him a licence to enable liim to be registered as an emigi-ant rimner in and 
 for (5) , and the said [A. B.'] having also been recom- 
 
 mended as a proper person to receive such licence by an emigration officer or by 
 the chief constable [or other head officer ofi)olice, as the case iimy he] of 
 [the district, town, or ^jlace in which the said A. B. is to carry on his business] : 
 We the under-mentioned justices, ha^^ng no sufficient cause sho^\Ti to us, and seeiiig 
 of ourselves no valid reason why the said A. B. should not receive such licence, do 
 hereby grant to liim this licence for the purposes aforesaid, subject nevertheless to 
 be revoked for misconduct on the pai't of the said A. B., as in the " Passengers 
 Act, 1855," is provided. 
 
 SCHEDULE (N.) 
 
 Form of Summons for a Defendant or a Witness. 
 
 A. B. Complainant 
 C. D. Defendant. 
 
 to command 
 
 you to 
 day of 
 
 appear without 
 
 county, or city, 
 
 rough, or police 
 (c) Insert this x- 
 when the de- , , 
 
 fendant is sum- case may be]. 
 moned. 
 
 [as the 
 
 Tliis is 
 fail on the 
 instant {or next) 
 
 at o'clock in the noon at 
 
 cr bo- / before me, or other the magistrate or justices of 
 
 district [ the peace then and there present (c) [to answer 
 
 J the complaint of an emigrant 
 
 I officer, or assistant emigration officer, or officer of 
 
 1 customs, or (in the colonies a goverment emigration 
 
 ^ or immigration agent, as the case nmy be,) for a breach 
 
 ((I) Insert this of the section (or sections, as the case may be,) of the Passengeis 
 
 is s*umnored°^^^ '^'^*' 1855,] (d) or to give evidence in the complaint of A. B. against C. D. for 
 
 breach of the Passengers Act, 1855]. 
 
 (Justice of the Peace, or police or 
 stipendiary magistrate, or 
 sheriif, or steward, or sheriff 
 substitute, or steward sub- 
 stitute, «s the case may be. 
 
 one thousand eight 
 
 Dated this 
 himdred and 
 
 day of 
 
 To 
 
 SCHEDULE (0.) 
 
 Form of Conviction and Order of Adjudication under the Passengers 
 Act, 1855, WHEN the Defendant appears. 
 
 A. B. Complainant. 
 C. J). Defendant, 
 
 Be it remembered. That on the day 
 
 "of instant, C. D. of 
 
 l^ersonally came before me {or us, as the case may 
 be,) at
 
 18 & 19 VICT. c. 119. 
 
 841 
 
 to canswer the compkint of ^. B. (e) for a breach (p) State 
 of the section (or sections, as the case may gil^fion'ottfcer 
 
 be) of the Passeut,^er Act, 1855, in that, t&c, (/) or officer of elis- 
 or (as the case may be) for a breach of the contract SerngS 
 contained in a certain contract ticket, dated , agent, or pas- 
 
 and issued by to _ for senger of the 
 
 a passage to in the ship 
 
 Whereupon I {or 
 
 ship ■ 
 
 county, or city, or bo- 
 rough, or police district, 
 or stewartry of {as 
 the case may be). 
 
 "^ t^^6 S^^ip . the case may bee 
 
 Ave) did proceed to examine (^ ) Here de- 
 into the complaint so made against the said G. D., and the same having been scribe biiefly 
 (admitted to be true l>y the said G. D., or as the case may be,) fully proved to my term^rlquh-c- 
 {or our) satisfaction by the testimony on oath of E. F. (g) a credible witness {or meiit(orre- 
 Avitnesses), I {or we) {h) [do convict him the said C. D. of tlie offence {or offences) '^^''^^^^^'^:i^i^l 
 aforesaid ; and I {or we)] do adjudge and order that he shall pay to the said A. B. \^.^f not 'been 
 as such (emigration officer, or government emigration agent, or officer of customs, fuiftiied. 
 or passenger of the ship ' , as the case may be,) the sum of £ witnesror wit- 
 
 by way of penalty {or by way of subsistence money, or of return of passage money, nesses, If more 
 or as damages for breach of such contract as aforesaid, as the case may be,) {i) [and than one. 
 shall also pay to the said A. B. the further sum of £ as compensation for Oi) Omit these 
 
 the loss and inconvenience occasioned to (k) by the loss of passage ^'°erc'*irno con- 
 
 ill the ship ]. viction, but only 
 
 (?) [And I (or we) do also adjudge and order that the licence granted to the :"}.°^jj^^'^"*, 
 said C. D. to act as a passage broker be forfeited.] (^-^ j^^^^i ti^j^ j^ 
 
 (m) [And I {or we) do hereby also adjudge and order that the sum of £ cases where 
 
 being a part not exceeding one moiety of the said penalty of £ , be compensation is 
 
 applied to compensate {n) for the wrong or damage which he (she or (;.^'^^J^^^Q ^jj^ 
 
 they) has {or have) sustained in this matter.] pass'enger or 
 
 And I {or we) clo further adjudge and order, that the said C. D. shall forthwith passengers by or 
 pay to the said A. B. tlie further sum of £ for the costs and charges by him ^ehliuhe com- 
 
 tlie said A. B. incurred in the prosecution of this matter. pensatinn is 
 
 Given under my hand and seal {or our hands and seal), this ') ry^'^*^'!' • 
 
 day of one thousand eight hundred and . where the "^ 
 
 f Justice of the Peace, police or offender is a 
 
 passage broker, 
 and his licence 
 
 Signature 
 
 stipendiary magistrate, 
 / sheriff", or steward, or sheriff', Is'deciared 
 "\ or steward substitute, as the forfeited. 
 V case may be, for (o). On) insert 
 
 Form of Conviction and Order of Adjudication where the Defendant 
 
 DOES not appear. 
 
 A, B. Complainanti 
 0, -D. "Defendant. 
 
 Be it remembered. That G. D. of 
 
 On) Insert this 
 where compen- 
 sation out of the 
 penalty is 
 awarded to any 
 aggrieved pas- 
 senger. 
 
 (».) Name the 
 passenger or 
 passengers. 
 
 (()) State county 
 or district, ice, 
 
 county, or city, or borough, 
 or police district, or stewar- 
 try of , as the case 
 may be. 
 
 \ being duly summoned to answer the complaint as tiie case 
 of A. B. (jj) for a breach of the ^""y '^c. 
 
 'section {or sections) of the Passengers Act, 1855 
 
 Qj) State 
 m that, cC'C, {cj) or {as the case may be), for a gration ottiw'r, 
 breach of the contract contained in a certain or officer of cus- 
 contract ticket, dated and issued by ment em|n?.™" 
 
 to for a passage to in tion agent, w- 
 
 the ship _, did not appear before me pi^^sj cger o f the 
 
 {or us), pursuant to the said summons. Nevertheless, the'case may" 
 \I {or we) did proceed to examine into the complaint i)e. 
 so preferred against tlie said C. D., ami the same having been duly proved to my biieti'}°'and^?n 
 {or our) satisfaction, by the testimony on oath of E. F. (r) a credible witness or general' terms 
 witnesses, I {or we) <lo, &c. {jxroceed as in i^revious form of conviction according to f^°, I'equ.ii'ement 
 he circumstances of the case.) monts) of the 
 
 Act which has 
 nut been fiU- 
 mied. 
 
 (r) Name the 
 witness or 
 witnesses.
 
 842 
 
 THE ADMIEALTY COURT ACT, 1861, 
 
 Slioi't title. 
 
 IntciTivetatiou 
 of terms. 
 
 Commencement 
 
 of Act. 
 
 As to claims 
 
 for building, 
 
 e(iuiiiiMng, or 
 
 repairing of 
 
 ships. 
 
 As to claims for 
 
 uecessaries. 
 
 As to claims for 
 damage to 
 cargo imported. 
 
 As to claims for 
 damage by any 
 ship. 
 
 High Court of 
 Aihuiralty to 
 decide ciuestioiis 
 as to ownership, 
 ice, of ships. 
 
 24 Vict. c. 10, 
 
 An Act to extend the Jurisdiction and improve the pmctice of the High Court of 
 Admimltij. [11th May, 1861.] 
 
 Whereas it is expedient to extend tlie jurisdiction and improve the practice of 
 the High Court of Admiralty of England : Be it therefore enacted, &c., as follows : 
 
 1. This Act may be cited for all purposes as " The Admiralty Court Act, 1861." 
 
 2. In the interpretation and for the purposes of tliis Act (if not inconsistent 
 •with the context or sul^ject) the following terms shall have the respective meanings 
 hereinafter assigned to them ; that is to say, 
 
 " Ship " shall include any description of vessel used in navigation not jDropelled 
 
 by oars : 
 " Caiise " shall include any cause, suit, action, or other proceeding ia the Coitrt 
 
 of Admiralty. 
 
 3. This Act shall come into operation o\\ the 1st day of June, 1861. 
 
 4. The High Court of Admiralty shall have jurisdiction over any claim for 
 the building, ec[uippiQg, or repairing of any ship, if at the time of the institution 
 of the caitse the ship or the proceeds thereof are linder arrest of the court. 
 
 5. The High Court of Admii-alty shall have jurisdiction over any claim for 
 necessaries supplied to any ship elsewhere than in the port to which the ship 
 belongs, unless it is shown to the satisfaction of the court that at the time of the 
 institution of the cause any o-\\Tier or part owner of the ship is domiciled in 
 England or Wales : Pro^^.ded always, that if in any such cause the plaintilf do 
 not recover £20 he shall not be entitled to any costs, charges, or expenses incurred 
 liy hiin therein, unless the judge shall certify that the cause was a fit one to be 
 tiied in the said coiut {a). 
 
 6. The High Coiu't of Admiralty shall have jurisdiction over any claim liy the 
 owner (jj) or consignee or assignee (c) of any bill of lading of any goods carried {d) 
 into any port in England or Wales in any shiia, for damage (e) done to the goods 
 or any part thereof by the negligence or misconduct of or for any breach of duty 
 or breach of contract (/) on the part of the owner, master or crew of the ship, 
 unless it is shown to the satisfaction of the court that at the time of the institution 
 of the cause any owner or part owner of the ship is domiciled in England or 
 Wales : Provided ahvays, that if in any such cause the plaintiff do not recover £20 
 he shall not be entitled to any costs, charges, or exj^enses incurred by him therein, 
 unless the judge shall certify that the cause was a fit one to be tried in the said 
 court {g). 
 
 7. The High Court of Admiralty shall have jurisdiction over any claim for 
 damage (A) doite by any ship (i). 
 
 8. The High Court of Admiralty shall have jurisdiction to decide all ques- 
 tions arising between the co-owners (/.■), or any of them, totiching the ownershij), 
 possession, employment, and earnings of any ship registered at any port in England 
 
 (a) As to when an objection to the jurisdiction 
 of a county court must be taken see ex parte 
 Michael, 41 L. J. Q. B. 349 ; 7 L. R. Q. B. 6.5S. 
 
 {b) The owner at the lime the damage was 
 done may sue under this section though he has 
 subsequently iiarted with his interest in the 
 goods. The Lady of the LaJce, 89 L. J. Ad. 40 ; 
 3 L. R. Ad. 29. 
 
 ((■) See the St. CJnmJ, Br. & Lush., 4. 
 
 ((0 The Pifvc Siq^ei-imre, 43 L. J. Ad. 20 ; 5 
 L. R. P. C. 4S2. 
 
 (e) See the rrinrpsf! Ttoyal, 39 L. J. Ad. 43. 
 
 (/) The Dninichrvfl, 44 L. J. Ad. 21. 
 
 in) This clause gives no maritime lien, 43 
 L. J. Ad. 20. 
 
 (/() This includes ]iersonal injury. The Btta, 
 38 L. J. Ad. 50 ; L. R. 2 P. C. 447 ; see tiiaith v. 
 Jirovii, 40 L. J. (). B. 214 ; L. R. 6 Q. B. 729 ; the 
 Franconia, 4G L. J. Ad. 71. A cause of damage 
 having been instituted in the Court of Admiralty 
 
 against a ship, by the Ti'idow of a person whose 
 death was caused by a collision at sea, to recover 
 damages xmder Lord Campbell's Act (9 & 10 
 Vict. c. 93), Held by Ja:mes, L. J., and Bau- 
 GALLAY. L. J., that the Admiralty Division hail 
 jurisdiction to try such a cause under 24 Vict. c. 
 10, s. 7. By Brajiwell, L. J., and BiiKXT, 1^. J., 
 that the court had no such jurisiUction. Jeffrvn 
 V. Oionerx of the Franconia, 46 L. J. Ad. SS : 
 Smith V. Broivti, 40 L. J. Q. B. 214, L. R. 6 Q. B. 
 729. 
 
 (0 The Clara KiVavi, 39 L. J. Ad. 50, 3 L. E. 
 Ad. IGl, wheic a ship's anchor got entangled with 
 an electric cable. 
 
 (fc; One ^^■ho has parted with his shares in a 
 vessel may nevertheless sue under this section 
 for the accounts as to her earnings while he was 
 a co-owner, llie Lad u of the Lake, 39 h. J. Ad.40; 
 The Idas, Br. and Lush., 65, where the ship 
 was lost before action.
 
 24 VICT. c. 10. 843 
 
 or Wales, or any share thereof, and may settle all accounts outstanding _ and 
 unsettled between the parties in relation thereto, and may direct the said ship or 
 any share thereof to he sold, and may make such order in the premises as to it 
 shall seem fit. 
 
 9. All the provisions of " The M. S. Act, 1854," in regard to salvage of life f/^^"^"'? ^. 
 from any ship or boat within the limits of the U. K., shall be extended to the c. i04,asto' 
 salvage of life from any British ship or boat, wheresover the services may have ^''."'"^ ^°^" •, 
 been rendered, and from any foreign ship or boat, where the services have been ^^ "^^^ 
 rendered either wholly or in part in British waters, 
 
 10. The High Court of Admiralty shall have jurisdiction over any claim by a As to claims for 
 seaman of any (l) ship for wages earned by Jiim on board the ship, whether the ^(J-'^fjffj.^^e'J^V^ts 
 same be due under a special contract (/) or otherwise, and also over any claim i,y niastcr of a 
 by the master (m) of any ship for wages earned by him on board the ship, and for ship- 
 disbursements made by him on account of the ship : Provided always, that if in 
 
 any such cause the plaintiff do not recover ^50, he shall not be entitled to any 
 costs, charges, or expenses incurred by him therein, unless the judge shall certify 
 that the cause was a fit one to be tried in the said court. 
 
 11. The High Court of Admiralty shall have jurisdiction over any claim in ? '^. ^^^i"?*- '"• ''^' 
 respect of any mortgage duly registered according to the provisions of " The M. S. J^JorSi'^es ex- 
 Act, 1854," whether the ship or the proceeds thereof be under arrest of the said teuded to Court 
 court or not. _ °^ Admiralty. 
 
 12. The High Court of Admiralty shall have the same powers over any British Sections 62 to 05 
 ship, or any share therein, as are conferred upon the High Court of Chancery in ".^ 104 Extended 
 England by the 62, 63, 64 and 65th sections of " The M."^ S. Act, 1854." to Com-t of 
 
 13. Whenever any ship or vessel, or the proceeds thereof, are under arrest ()i) r^'^""™'fy- 
 of the High Court of Admiralty, the said court shall have the same powers as are yjct. c. 104, 
 conferred ui3on the High Court of Chancery in England by the 9th part of " The extended to 
 M. S. Act, 1854." mirK^'" 
 
 14. The High Cotirt of Adndralty shall be a court of record for all intents and c^,„i.t ^q t)e a 
 purposes. court of record. 
 
 15. All decrees and orders of the High Court of Admiralty, whereby any sum , 
 
 of money, or any costs, charges, or expenses, shall be payable to any person, shall orders of Court 
 have the same effect as judgments in the superior courts of common law, and the of Admiralty to 
 persons to whom any such monies, or costs, charges, or expenses, shall be payable, jiJ^I^Q^euts at 
 shall be deemed judgment creditors, and all powers of enforcing judgments common law. 
 possessed by the superior cotu'ts of common law, or any judge thereof, with respect 
 to matters depending in the same courts, as well against the ship and goods 
 arrested as against the person of the jtidgment debtor, shall be i^ossessed by the 
 said Court of Admiralty with resjiect to matters therein depending ; and all 
 remedies at common law possessed by judgment creditors shall be in like manner 
 possessed by persons to whom any monies, costs, charges, or expenses are by such 
 orders or decrees of the said Court of Admiralty directed to be paid. 
 
 16. If any claim shall be made to any goods or chatties taken in execittion under As to claim to 
 any process of the High Coitvt of Admiralty or in respect of the seizure thereof fxecutiou.'^'^ "^ 
 or any act or matter connected therewith, or in respect of the proceeds or value of 
 
 any such goods or chattels, by any landlord for rent, or by any person not being 
 the party against wliom the process has issued, the registrar of the said 
 court may, upon application of the officer charged with the execution of the 
 process, whether before or after any action brought against such officer, issue a 
 
 (/) Tills applies to a foreign sliip. The Nina, 37 L. J. Ad. 60. As to the meaning of " rtisbursc- 
 
 37 \u J. Ad. 17. The Court of Admiralty has ments" beetheC7(?e/ta/7/, 32 L. J. Ad. 106. 
 
 jurisdiction to entertain a claim by seamen for {n) In suits for limiting the liability of the 
 
 wrongful dismissal and the consequential owners of a wrong-doing vessel the Court of 
 
 damages. The Great Eastern, 36 h. J. Ad. 15 Admiralty has jurisdiction under this section if 
 
 2 Iv. li. Ad. 88. The Court of Admiralty has no bail has been given by her owners, even though 
 
 jurisdiction under this section to adjudicate upon mi ari-est has actually taken place. The Xor- 
 
 u mate's claim for wages paid to the crew, and t/ininbria, 39 L. J. Ad. 2i. see the IXur)nan(l!i, 
 
 necessary disbursements made by him in foreign 39 Ij. J. Ad. 48, where the ship sank. See 
 
 parts. The Victoria, 37 L. J. Ad. 12. James v. London tl- .S'. W. Jl, Co. 41 L. J. Ex. 186, 
 
 (IK) When freight has been earned the master where in an action for collision it was held that 
 
 of the ship though also part owner, may sue in neillier the ship nor the jn'occcds thereof were 
 
 the Admiralty Court under this section to re- underarrcst, and that the Court of Admiralty liad 
 
 cover his wages aud disbursemeuts ; the Feruida, no jurisdiction under this sect. ; see Willes, J.'s 
 
 remarks in this case on the Nortlmvibria.
 
 844 
 
 THE ADMIEALTY COURT ACT, 1861, 
 
 Powers of 
 Kuperior courts 
 extended to 
 Court of 
 Admiralty. 
 
 Paity itt Court 
 of Admiralty 
 may apply for 
 au order for 
 inspection by 
 Trinity masters, 
 
 Admission of 
 docimients. 
 
 Power to Court 
 of Admii-alty 
 when personal 
 service of 
 citation lias not 
 been affected, 
 to order parties 
 to proceed. 
 
 As to the seiTice 
 of subpcEna out 
 of England and 
 Wales. 
 
 Power to issue 
 new vrvits or 
 other process. 
 
 Judge and 
 registrar to 
 have same 
 power as to 
 arbitration as 
 judges and 
 masters at 
 common law. 
 
 summons calling before the said court botli the party issuing such process and the 
 party making the claim, and thereupon any action Avhich shall have been brought 
 in any of H. M.'s superior courts of record, or in any local or inferior coiu-t, in 
 respect of such claim, seizure, act, or matter as aforesaid, shall be stayed, and the 
 coiu't in which such action shall have been brought, or any jitdge thereof, on proof 
 of the issue of s:ich summons, and that the goods and chattels "were so taken in 
 execution, may order the party biinging the action to pay the costs of all proceed- 
 ings had upon the action after issue of the summons out of the said Admiralty 
 Court, and the judge of the said Admiralty Court shall adjudicate upon the claim, 
 and make such order between the parties in respect thereof and of the costs of the 
 proceedings, as to him shall seem tit, and such order shall be enforced in like 
 manner as any order made in any suit brought in the said court. AVhere any 
 such claim shall be made as aforesaid the claimant may deposit ^nth the officer 
 charged with the execution of the process either the amount or valite of the goods 
 claimed, the value to l^e fixed by appraisement in case of dispute, to be by the 
 officer paid into court to abide the decision of the judge upon the claim, or the 
 sum which the officer shall be allowed to charge as costs for keeping possession of 
 the goods until such decision can be obtained, and in default of the claimant so 
 doing the officer may sell the goods as if no such claim had been made, and 
 shall pay into court the proceeds of the sale, to abide the decision of the jitdge. 
 
 17. The judge of the High Court of Admiralty shall have all such powers as ai'e 
 possessed by any of the superior courts of common law or any judge thereof to 
 compel either party in any cause or matter to answer interrogatories, and to 
 enforce the production, inspection, and delivery of copies of any document in his 
 possession or power. 
 
 18. Any party in a cause in the High Court of Admiralty shall be at liberty to 
 apply to the said court for an order for the inspection by the Trinity Masters or 
 others appointed for the trial of the said cause, or by the party himself or his wit- 
 nesses, of any ship or other personal or real property, the insj)ection of which may 
 be material to the issue of the cause, and the coiu-t may make such order in respect 
 of the cost arising thereout as it shall seem fit. 
 
 19. Any party in a cause in the High Coiu-t of Admiralty may call on any 
 other party in the cause by notice in ■\\Titing to admit any document, saving all 
 just exceptions, and in case of refusal or neglect to admit, the costs of proving the 
 document shall be paid by the party so neglecting or refusing, whatever the result 
 of the cause may be, unless at the trial the judge shall certify that the refusal to 
 admit was reasonable. 
 
 20. Whenever it shall be made to appear to the judge of the High Court of 
 Admiralty that reasonable efforts have been made to effect personal service of any 
 citation, monition, or other process issued under seal of the said court, and either 
 that the same has come to the knowledge of the party thereby cited or monished, 
 or that he wilfully evades ser\T.ce of the same, and has not appeared thereto, the 
 said judge may order that the jiarty on whose behaK the citation, monition, or 
 other process was issued be at liberty to proceed as if personal ser\dce had been 
 effected, subject to such conditions as to the judge may seem fit, and all proceed- 
 ings thereon shall be as effectual as if personal service of such citation, monition, 
 or other process had been effected. 
 
 21. The service in any part of Great Britain or Ireland of any ^nit of subpcena 
 ad testificandum or suhpoma duces tecum, issued under seal of the High Court of 
 Admiralty, shall be as effectual as if the same had been served in England or Wales. 
 
 22. Any new writ or other process necessary or expedient for giving effect 
 to any of the provisions of this Act may l)e issued from the High Cottrt of 
 Admiralty in such form as the judge of the said court shall from time to time 
 direct. 
 
 23. All the powers possessed by any of the superior coiu'ts of common law or 
 any judge thereof, itnder the C. L. P. Act, 1854, and otherwise, with regard 
 to references to arbitration, proceedings thereon, and the enforcing of awards 
 of arbiti-ators, shall be possessed by the judge of the High Court of Admi- 
 ralty in all causes and matters depending in the said court, and the registrar of the 
 said Coiu't of Admiralty shall possess as to such matters the same powers as are 
 possessed by the masters of the said superior courts of common law in relation 
 thereto.
 
 24 VICT. 0. 10. • 845 
 
 24. The registrar of the High Court of Admiralty shall have the same powers Section 15 of 
 under the 15th section of the M. S. Act, 1854, as are by the said section conferred ^^-.q.^^ Y.''^*;i 
 on the masters of Her Majesty's Court of Queen's Bench in England and Ire- to registrar or 
 
 land. Court of Admi- 
 
 25. The registrar of the High Court of Admiralty may exercise, with reference p*^*^" _ 
 
 to causes and matters in the said court, the same powers as any surrogate of the registrar and 
 ji;dge of the said court sitting in chambers might or could have heretofore lawfully of deputy or 
 exercised ; and all powers and authorities by this or any other Act conferred upon ^jl'^Jf*'''"^^ regis- 
 or vested in the registrar of the said High Court of Admiraltj^ may be exercised by 
 any deputy or assistant registrar of the said court. 
 
 26. The registrar of the said Court of Admiralty shall have power to administer False oath or 
 oatJis in relation to any cause or matter depending in the said court ; and any deemed perjury, 
 person who shall Avilfully depose or afhrm falsely in any proceeding before the 
 
 registrar or before any deputy or assistant registrar of the said court, or before any 
 person authorized to administer oaths in the said coui't, shall be deemed to be 
 guilty of perjury, and shall be liable to all the pains and penalties attaching to 
 wilful and corrupt perjury. 
 
 27. Any advocate, barrister-at-law, proctor, attorney, or solicitor of ten years' Appointment of 
 standing may be appointed registrar or assistant or deputy registrar of the said ^l^^^t'^^'^o/assist 
 
 court, antregistrar.(a) 
 
 28. Any advocate, barrister-at-law, proctor, attorney, or solicitor may be Appointment of 
 appointed an examiner of the High Court of Admiralty. examiners. 
 
 29. [Repealed by Statute Law Revision Act, 1875.] 
 
 30. Any proctor of the High Court of Admiralty may act as agent of any Proctor may 
 attorney or solicitor, and allow him to participate in the profits of and incident to soudtoil™'^ "^ 
 any cause or matter depending in or connected with the said court. [The rest of 
 
 this section is repealed by Statute Law Revision Act, 1875.] 
 
 31. The Act, 2 Hen. 4, intituled " A Remedy for Him who is wrongfully pur- 2 Hen. 4. c. ll, 
 sued in the Court of Admiralty," is hereby repealed, (h) repealed. 
 
 32. Any party aggrieved by any order or decree of the judge of the said Court power of appeal 
 of Admiralty, whether made ex imrte or otherwise, may, with the permission of the i° interlocutory 
 judge, appeal therefrom to H. M. in council, as fully and effectually as from any '^'''^^'^^■®- 
 final decree or sentence of the said court. 
 
 33. In any cause in the High Court of Admiralty bail may be taken to answer Bail given in 
 the judgment as well of the said court as of the Court of Appeal, and the said ^h? Court oj 
 High Court of Admiralty may withhold the release of any property under its in tho'court'o'f '^ 
 arrest until such bad has been given ; and in any appeal from any decree or order Appeal, (c) 
 
 of the High Court of Admii-alty the Court of Appeal may make and enforce its 
 order against the surety or sureties who may have signed any such bail bond in 
 the same manner as if the bail had been given in the Court of Appeal. 
 
 34. The High Court of Admiralty may, on the application of the defendant in As to the hear- 
 any cause of damage, and on his instituting a cross cause for the damage sustained i"g of causes 
 by him in respect of the same collision, direct that the principal cause and the causes, 
 cross cause be heard at the same time and upon the same evidence ; and if in the 
 principal cause the ship of the defendant has been arrested or security given by 
 
 him to answer judgment, and in the cross cause the ship of the plaintiff cannot be 
 arrested, and security has not been given to answer judgment therein, the coiut 
 may, if it think fit, suspend the proceedings in the principal cause, imtil seciuity 
 has been given to answer judgment in the cross cause. 
 
 35. The jurisdiction conferred by this Act on the High Court of Admiralty Jurisdiction of 
 may be exercised either by proceedings in rem or by proceedings in ijersonam. the court. 
 
 (a) See 33 & 34 Vict. c. 45, an Act for esta- (b) See Statute Law Revision Act, 1876. 
 
 blisliing a district registrar of the High Court of (c) The St. Olaf, 38 L. J. Ad. 41. 
 
 Admiralty in England at Liverpool.
 
 846 
 
 M, S, ACT AMENDMENT ACT, 1862, 
 
 THE MERCHANT SHIPPING ACT AMENDMENT ACT, 1862. I 
 
 25 & 26 Vict. c. 63. 
 
 17&18Tict. 
 c. 104. 
 
 15 & 19 Vict, 
 c. 91. 
 
 16 & 17 Vict. 
 c. 107. 
 Sliort title. 
 
 Enactment in 
 Table (A.) 
 repealed. 
 
 An Ad to amend " Tlie Merchant Slii^yping Act, 1854," " The Merchant Shijyping 
 Act Amendment Act, 1855," and " The Customs Consolidation Act, 1853." 
 
 [29tli July, 1862.] 
 
 Whereas it is expedient further to amend "The M. S. Act, 1854," "The M. S. 
 Act Amendment Act, 1855," and " The Customs Consolidation Act, 1853 :" Be it 
 enacted, &c., as follows : 
 
 1. Tliis Act may be cited as " The Merchant Shipping Act Amendment Act, 
 1862," and sliall be construed with and as part of " The Merchant Shipping Act, 
 1854," hereinafter termed the principal Act. 
 
 2. The enactments described in Table (A.) in the schedule to this Act .shall be 
 repealed as therein mentioned, except as to any liabilities iacurred before such 
 repeal (a). 
 
 Registry and Measurement of Tonnage {Part II. of Merchant Shipping Act, 1854). 
 
 Ev'itics not 3_ j^ jg hereby declared that the expression " beneficial interest," whenever used 
 
 Act.*^ " ^ " ' in the 2nd part of the principal Act, includes interests arising under contract 
 and otlier equitable interests ; and the intention of the said Act is that, without 
 prejudice to the provisions contained iu the said Act for preventing notice of 
 tiiists from being entered in the register book or received by the registrar, and 
 without prejudice to the powers of disjjosition and of gi^aug receipts conferred by 
 the said Acts on registered owners and mortgagees, and without prejudice to the 
 provisions contained in the said Act relating to the exclusion of unqualified 
 persons from the ownership of British ships, equities maj' be enforced against 
 owners and mortgagees of ships in respect of their interest therein, in the same 
 manner as equities may be enforced against them in respect of any other personal 
 property. 
 Tonnage rates 4. Any body corporate or persons having power to levy tonnage rates on ships 
 nuder roeai Acts j^^j^y jf they think fit, with the consent of the Board of Trade, levy sucli tonnage 
 Se registered rates upon the registered tonnage of the ships as determined by the rules for the 
 tonnage.'' measurement of tonnage for the time being in force imder the principal Act, 
 
 not^\'ithsttmding that the local Act or Acts under which such rates are le^aed 
 prov-ides for le^'ying the same upon some different system of tonnage measure- 
 ment. 
 
 steam ships to 
 carry certifi- 
 cated engineers 
 
 Certificates for Engineers (Part III. of Merchant Shipping Act, 1854.) 
 
 5, On and after the 1st day of June, 1863, every steam ship -which is required 
 
 by the principal Act to have a master possessing a certificate from the Board of 
 
 Trade shall also have an engineer or engineers possessing a certificate or certificates, 
 
 from the Board of Trade as foUows ; that is to say, _ ^ 
 
 (1.) Engineer's certificates shall be of two gTades, viz., "First-class Engineers 
 
 Certificates," and " Second-class Engineei*'s Certificates : 
 (2.) Every foreign-going steam ship of 100 nominal horse power or upwards 
 shall have as its fh-st and second engineers two certificated engineers, 
 the first possessing a " First-class Engineer's Certificate," and the second 
 
 (a) See Statute Law ReYision Act, 1875.
 
 25 & 26 VICT. c. 63. 847 
 
 possessing a " Second-class Engineer's Certificate," or a certificate of the 
 higher grade : 
 
 (3.) Every foreign-going steam ship of less than 100 nominal horse power 
 shall have as its only or first engineer an engineer possessing a " Second- 
 class Engineer's Certificate," or a certificate of the liigher grade : 
 
 (4.) Every seagoing home-trade passenger steam ship shall have as its only or 
 first engineer an engineer possessing a " Second-class Engineer's Certi- 
 ficate," or a certificate of the higher grade : 
 
 (5.) Every person who, having been engaged to serve in any of the above capa- 
 cities in any sxich steam ship as aforesaid, goes to sea in that capacity 
 without being at the time entitled to and possessed of such certificate as 
 is refjuired by this section, and every person who employs any person in 
 any of the above capacities in such ship Avithout ascertaining that he is 
 at the time entitled to and possessed of such certificate as is rcrpiired 
 by this section, shall for eacli such offence incur a penalty not exceed- 
 ing J50. 
 
 6. The Board of Trade shall from time to time cause examinations to l)e held Examinations 
 of persons who may be desirous of obtaining certificates of competency as engi- g*'rtmcaterof 
 neers : For the purpose of such examinations the Board of Trade shall from time competency, 
 to time appoint and remove examiners, and award the remuneration to be paid to 
 
 them ; lay down rules as to the qualification of applicants, and as to the times 
 and places of examination ; and generally do all such acts as it thinks expedient 
 in order to carry into effect the examination of such engineers as aforesaid. 
 
 7. All applicants for examination shall pay such fees, not exceediiig the sums pees to be paid 
 specified in the Table marked (B.) in the schedule hereto, as the Board of Trade by appiicancs 
 dir'ects ; and such fees shall be paid to such persons as the said Board appoints tion!^^"^"^^" 
 for that purpose, and shall be carried to the account of the Mercantile Marine 
 
 Fund (b). 
 
 8. 'The Board of Trade shall deliver to every Applicant who is duly reported to Certificates of 
 have passed the examination satisfactorily, and to have given satisfactory evidence h°™^-^nted^to'* 
 of his sobriety, experience, and ability, a certificate of competency, as first-class tliole'who pass. 
 engineer or as second-class engineer, as the case may be. 
 
 9. Certificates of serAdce for engineers, differing in form from certificates of com- Engineers 
 petency, shall be granted as follows ; that is to say, certificates of 
 
 (1.) Every person who before the 1st day of April, 1862, has served as first delivered on 
 
 engineer in any foreign-going steam ship of 100 nominal horse power or proof of certain 
 upwards, or who has attained or attains the rank of engineer in the ser- ser\'ice. 
 vice of H. ]\1. or of the East India Company, shall be entitled to a 
 " First-class Engineer's Certificate " of service : 
 (2.) Every person who before the 1st day of April, 1862, has served as second 
 engineer in any foreign-going steam ship of 100 nominal horse power or 
 upwards, or as first or only engineer in any other steam ship, or who 
 has attained or attains the rank of tnst-class assistant engineer in the 
 service of H, M. shall be entitled to a " Second-class Engineer's Certi- 
 ficate " of service : 
 Each of such certificates of service shall contain particulars of the name, place, and 
 time of bu-th, and the length and nature of the pre\dous service of the person to 
 whom the same is delivered ; and the Board ot Trade shall deliver such certificates 
 of service to the various persons so respectively entitled tliereto upon their 
 proving themselves to have attained sucli rank or to have served as aforesaid, 
 and upon their giA'ing a fidl and satisfactory account of the particidars aforesaid. 
 
 10. The provisions of the principal Act, with respect to the certificates of com- Certain pro- 
 petency or service of masters and mates, contained in the 138th, 139th, 140th, ■^'=*i''"*^/'f M. S. 
 161st, and 162nd sections of the said Act, shall apply to certificates of competency to'^ensineers' 
 or service granted under this Act in the same manner as if certificates of com- certificates. 
 petencj^ and service to be granted to engineers under this Act were siDCcially 
 mentioned and included in the said sections. 
 
 11. The power hy the 241st section of the principal Act given to the Board of Power of Board 
 Trade or to any local marine board of instituting investigations into tlie conduct ",^^.^1''"'^®,"°*^ 
 of any master or mate whom it has reason to believe to be from incompetency or board to inves- 
 
 (!/) These foes are now paid into the Court of Excliequer. See 43 & 44 Vict. c. 22, s. 4.
 
 848 
 
 M. S. ACT AMENDMENT ACT, 1862, 
 
 tigatc conduct 
 of certificated 
 engineers. 
 
 Declaration of 
 engineer sur- 
 veyor to con- 
 tain statement 
 concerning 
 engineer's certi- 
 ficate. 
 
 miscoiitluct unfit to discharge his duties, shall extend to any certificated engineer 
 whonr the Board of Trade or any local marine board has reason to believe to be 
 from incompetency or misconduct unfit to discharge the duties, in the same 
 manner as if in the said section the words " Certificated Engineer " had been 
 inserted after " Master," wherever " Master" occurs insuch section. 
 
 12. The declaration required to be given by the engineer surveyor under section 
 309 of the principal Act shall, in the case of a ship by this Act required to have a 
 certificated engineer, contain, in addition to the statements in the said section 
 mentioned, a statement that the certificate or certificates of the engineer or 
 engineers of such ship is or are such and in such condition as is required by this 
 Ac°t. 
 
 Masters and Seamen {Part III. of Merchant Sliipping Act, 1854). 
 
 3rd part of 
 Act to apply to 
 fishing boats 
 light-house 
 vessels, and 
 pleasure yachts, 
 ■with certain 
 exceptions. 
 
 Local marine 
 board may 
 determine 
 number of 
 quorum. 
 
 Shipping 
 offices, &c., now 
 called mercan- 
 tile marine 
 offices, kc. 
 
 Punishment 
 for embezzle- 
 ment in shipping 
 offices. 
 
 Examinations of 
 masters and 
 mates at ports 
 
 13. The following vessels ; that is to say, 
 
 (1.) Registered seagoing ships exclusively employed in fishing on the coast of 
 the U. K. ; 
 
 (2.) Seagoing ships belonging to any of the three general light-house boards ; 
 
 (3.) Seagoing ships being pleasure yachts ; 
 Shall be subject to the whole of the third part of the principal Act ; except, — 
 Sections 136, 143, 145, 147, 149, 150, 151, 152, 153, 154, 155, 157, 158, 161, 162, 
 166, 170, 171, 231, 256, 279, 280, 281, 282, 283, 284, 285, 286, and 287. 
 
 14. "Whereas doubts have been entertained whether local marine boards have 
 the power of determining a quorum : It is hereby declared, that the power by the 
 119th section of the principal Act given to every local marine board of regulating 
 the mode in which its meetings are to be held and its business conducted includes 
 the power of determining a quQj'ttm ; nevertheless, after the passing of this Act 
 sitch quorum shall never consist of less than 3 members. 
 
 15. The ofiices termed shipping ottices in the principal Act shall be termed 
 mercantile marine ofiices, and the officers termed shipping masters and deputy 
 sliipping masters in the principal Act shall be termed superintendents and deputy 
 superintendents of such offices; but nothing in this section contained shall 
 invalidate or aftect any act which may be done at any such office under the 
 title of a shipping ofl&ce, or any act which may be done by, with, or to any of 
 the said oflicers under the title of shipping master or deputy shipping master. 
 
 16. Any person appointed to any ottice or service by or under any local marine 
 board shall be deemed to be a clerk or servant within the meaning of the 6Stli 
 section ot the Act of 25 Vict. c. 96. 
 
 If any such person fraudulently applies or disposes of any chattel, money, or 
 valuable security received by him whilst employed in such office or ser\dce for or 
 on account of any such local marine board, or for or on account of any other 
 public board or department, to his own use or any use or purpose other than that 
 for wliich the same was paid, entrusted to, or received by him, or fraudulently 
 ■withholds, retains, or keeps back the same or any part thereof conti'ary to any 
 la-\vful directions or instructions which he is rec[uired to obey in relation to such 
 ofliice or service, he shall be deemed guilty of embezzlement mthin the meaning 
 of the said section : 
 
 Any such person shaU, on conviction of such oftence as aforesaid, be liable to 
 the same pains and penalties as are thereby imposed upon any clerk or servant for 
 embezzlement : 
 
 In any indictment against such person for such oflence it shall be sufficient to 
 charge any such chattel, money, or valuable security as the property either of the 
 board by which he was appointed, or of the board or department for or on account 
 of which he may have received the same ; and no greater particularity in the 
 description of the property shaU be required in such indictment in order to sus- 
 tain the same, or in proof of the offence alleged, than is required in respect of an 
 indictment or the subject matter thereof by the 71st section of the said last- 
 mentioned Act, 
 
 17. Whereas it is expedient to make provision in certain cases for holding 
 examinations of applicants for certificates of competency at places where tltere are
 
 25 & 26 VICT. r. 63. 8i9 
 
 no local marine boards : Be it enacted, that the Board of Trade, if satisfied that where there are 
 
 serious inconvenience exists at any port in consequence of the distance M-hich {J^j^^Pj^jf' "^'^"°° 
 
 ajiplicants for certificates liave to travel in order to be examined, may with the 
 
 concurrence of any local marine board, send the examiner or examiners of that 
 
 local marine l)oard to the port where such inconvenience exists ; and thereupon 
 
 tlie said examiner or examiners shall proceed to such port, and shall there examine 
 
 the applicants in the presence of such person or persons (if any) as the Board of 
 
 Trade may appoint for the purpose ; and such examinations shall be conducted in 
 
 the same "manner and shall have the same effect as other examinations under the 
 
 said Act. 
 
 18. It is hereby declared that the 182nd section of the principal Act does iiot Constractwn of 
 a]jply to the case of any stipulation made by the seamen belonging to any ship, pHncipai*Aet. 
 which according to the terms of the agreement is to be employed on salvage stipulations con- 
 service, mth respect to the remuneration to be paid to them for salvage services cernmg salvage. 
 to be rendered by such ship to any other .sliip or ships («). 
 
 19. The payment of seamen's wages required by the 209tli section of the P^y™™* o^ 
 principal Act shall, whenever it is practicable so to do, be made in money and not ahroad unae™ 
 by bill ; and in cases where payment is made by bill drawn by the master, the sect. 209 of 
 owner of the ship .shall be liable to pay the amount for which the same is drawm. Principal Act. 
 to the holder or indorsee thereof ; and it shall not be necessary in any proceeding 
 
 against the owner upon such bill to prove that the master had authority to draw 
 the same ; and any bill purporting to l^e dra^vn in pursuance of the said section, 
 and to be indorsed as therein required, if produced out of the custody of the Board 
 of Trade or of the registrar-general of seamen (b), or of any superintendent of any 
 mercantile marine office, shall be received in evidence ; and any indorsement on 
 any such bill pm-porting to be made in pursuance of the said section, and to be 
 signed by one of the functionaries therein mentioned, shall also be received in 
 evidence, and shall be deemed to be primd facie evidence of the facts stated in 
 such indorsement. 
 
 20. The 197th section of the principal Act shall extend to seamen or appren- Wages and 
 tices who within the 6 months immediately preceding their death have belonged ^^^^^^^ seamen, 
 to a British ship ; and such section shall be construed as if there were inserted in 
 
 the first line thereof after the words " such seaman or apprentice as last aforesaid" 
 the words " or if any seaman or apprentice who has witliin the 6 months imme- 
 diately preceding his death belonged to a British ship." 
 
 21. The wages of seamen or apprentices who are lost "svith the .ship to which Recovery of 
 they belong shall be dealt with as follows ; (that is to say,) wages, &e., 
 
 (1.) Tlie Board of Trade may recover the same fi-om the owner of the ship in with their ship, 
 the same manner in wliich seamen's wages are recoverable : 
 
 (2.) In any proceedings for the recovery of such wages, if it is shown by some 
 official return produced out of the custody of the registrar-general of 
 seamen (b) or by other evidence that the ship has 12 months or 
 upwards before the institution of the proceeding left a port of departure, 
 and if it is not shown that she has been heard of within 12 months 
 after such departure, she shall be deemed to have been lost with aU 
 hands on board, either inmiediately after the time she was last heard 
 of or at such later time as the court hearing the case may thiak 
 probable : 
 
 (3.) The production out of the custody of the registrar-general of seamen (b) or of 
 the Board of Trade of any duplicate agreement or list of the crew made 
 ou.t at the time of the last departure of the ship from the U. K., or of a 
 certificate purporting to be a certificate from a consular or other public 
 officer at any port abroad, stating that certain seamen or apprentices 
 were shijiped iii the ship fi-om the said port, shall, in the absence of proof 
 to the contrary, be .sufficient proof that the seamen or apprentices therein 
 named were on Ijoard at the time of the loss : 
 
 (4.) The Board of Trade .shall deal with such wages in the manner in which 
 they deal with the wages of other deceased seamen and apprentices under 
 the principal Act. 
 
 (a) The Rosario, 46 L. J. Ad. 52. 
 
 (&) Now registrar-general of shipping and seamen ; 35 & 36 Yict. c. 73, s, 4, 
 3 J
 
 850 
 
 MERCHANT SHIPPING ACTS AMENDMENT ACT, 
 
 Relief of (lis- 
 tressed s^camen to 
 be regulated by 
 Board of Trade. 
 
 Power of 
 cancelling cer- 
 tificate to rest 
 witli the court 
 which hears the 
 case. 
 
 Certificate to be 
 delivered up. 
 
 22. Wliereas under tlie 211tli and 212tli sections of the principal Act, and tlie 
 16th section of "The M. S. Act Amendment Act, 1855," provision is made for 
 relieving and sending home seamen found in distress abroad : And Avhereas doubts 
 are entei'tained whether power exists under the said sections of making regulations 
 and imposing conditions which are necessary for the prevention of desertion and 
 misconduct and the undue expenditure of priblic money : Be it enacted, and it is 
 hereby declared, that the claims of seamen to be relieved or sent home in pur- 
 suance of the said sections or any of them shall be subject to such regulations and 
 dependent on such conditions as the Board of Trade may from time to time 
 make or impose ; and no seaman shall have any right to demand to be relieved or 
 sent home except in the cases and to the extent provided for by such regulations 
 and conditions. 
 
 23. The following rules shall be observed with respect to the cancellation and 
 suspension of certificates, that is to say : 
 
 (1.) The power of cancelling or suspending the certificate of a master or mate 
 by the 242nd section of the principal Act conferred on the Board of 
 Trade shall (except in the case proAdded for by the fourth paragraph of 
 the said section) vest in and be exercised by the local marine board, 
 magistrates, Naval Court, Admiraltj^ Court, or other court or tribunal by 
 which the case is investigated or tried, and shall not in future vest in or 
 be exercised by the Board of Trade : 
 (2.) Such power shall extend to cancelling or suspending the certificates of 
 engineers in the same manner as if " Certificated Engineer " or " Certifi- 
 cated Engineers" were inserted tliroughout such section after "Master" 
 or "Masters": 
 (3.) Every such board, coiu't, or tribunal shall at the conclusion of the case, or 
 as soon afterwards as possible, state in open court the decision to which 
 they may have come with respect to cancelling or suspending certificates, 
 and shall in all cases send a full report ttpon the case, with the evidence, 
 to the Board of Trade, and shall also, if they determine to cancel or sus- 
 l^end any certificate, for^vard such certificate to the Boai'd of Trade ^Aath 
 theii' report : 
 (4.) It shall be lawful for the Board of Trade, if they think the justice of the 
 case requii'e it, to reissue and return any certificate which has been can- 
 celled or suspended, or shorten the time for which it is suspended, or 
 grant a new certificate of the same or any lower grade in place of an}' 
 certificate which has been cancelled or suspended : 
 (5.) The 434th and 437th sections of the principal Act shall be read as if for 
 the word " Nautical" were substituted the words " Nautical or Engineer- 
 ing," and as if for the word " Person" and " Assessor" respectively were 
 sitbstituted the words "Person or Persons" and "Assessor or Assessors" 
 respectively (a) : 
 (6.) No certificate shall be cancelled or suspended under this section imless a 
 copy of the report or a statement of the case ujjon which the investiga- 
 tion is ordered has been furnished to the OAvner of the certificate before 
 the commencement of the investigation, nor, in the case of investigations 
 conducted by justices or a stipendiary magistrate, unless one assessor at 
 least exj^resses his concurrence in the report : 
 24. Every master or mate or engineer whose certificate is or is to be suspended 
 or cancelled in pursuance of this Act shall, upon demand of the board, court, or 
 tribtmal by which the case is investigated or tried, deliver his certificate to them, 
 or, if it is not demanded by such board, court, or tribtmal, shall, upon demand, 
 deliver it to the Board of Trade, or as it directs, and in default shall for each 
 offence incur a penalty not exceeding ^50. 
 
 Enaetmont of 
 regulations con- 
 cerning lights, 
 fog siguais, aud 
 
 Safety {Part IV. of Merchant Shipinng Ad, 1854). 
 
 25. On and after the 1st day of June, 1863, or such later day as may be fixed 
 for the purpose by order in council, the regulations contained in the table marked 
 (C.) in the schedule hereto shall come into operation and be of the same force as 
 
 (a) See 39 & 40 Yict. c. 80, s. 44.
 
 25 & 26 VICT. c. 63. 851 
 
 if they were enacted in the body of this Act ; hut H. M. may fmni time to time, sailing rule* in 
 on the joint recommendation of tlie Admiralty and the Board of Trade, by order ^chedule, Table 
 in council, annul or modify any of the said regulations, or make new regulations 
 in addition thereto, or in substitution therefor ; and any alterations in or additions 
 to such regulations made in manner aforesaid shall be of the same force as the 
 regulations in the said schedule. 
 
 26. Tlie Board of Trade shall cause the said regulations and any alterations ^f g^i/^t'^ns to 
 therein or additions thereto hereafter to be made to be printed, and shall furnish '^ ^'^ ^' "^' • 
 a copy thereof to any owner or master of a sliip who applies for the same ; and 
 production of the Gazette in which any order in council containing such regula- 
 tions or any alterations therein or additions thereto is published, or of a copy of 
 
 such regulations, alterations, or additions, signed or purporting to be signed by 
 one of the secretaries or assistant secretaries of the Board of Trade, or sealed or 
 purporting to be sealed with the seal of the Board of Trade, shall be sufficient 
 evidence of the due making and purport of such regulations, alterations, or 
 additions. 
 
 27. All owners and masters of ships shall be bound to take notice of all such ^^^"t^,^ 'j^'^Jj^^, 
 regulations as aforesaid, and shall, so long as the same continue in force, be bound to obe'y them.'^ 
 to obey them, and to carry and exhibit no other lights and to use no other fog 
 
 signals than such as are required by the said regulations ; and in case of wilful 
 default, the master, or the owner of the ship if it appear that he was in such fault, 
 shall, for each occasion upon wliich such regulations are infringed, be deemed to 
 be guiltj^ of a misdemeanor. 
 
 28. In case any damage to person or property arises fromtha non-observance by Breaches of 
 any ship of any regulation made by or in pursuance of this Act, such damage i,up"y'wiifui ° 
 sliall be deemecl to have been occasioned by the wilful default of the person in default of 
 charge of the deck of such ship at the time, unless it is shown to the satisfaction P|*;!ij.°Q_"^ 
 
 of the court that the circumstances of the case made a departure from the regula- 
 tion necessary. 
 
 29. [Repealed by 36 & 37 Vict. c. 85, s. 33.] 
 
 30. The following steps may be taken in order to enforce compliance with the Inspection for 
 said regulations ; that is to say, huS(^.''°"' 
 
 (1.) The surveyors appoiirted under the 3rd part of the principal Act, or such 
 other persons as the Board of Trade may appoint for the purpose, may 
 inspect any ships for the purpose of seeing that such ships are properly 
 provided with lights and Avith the means of making fog signals in pur- 
 suance of the said regiilations, and shall for that purpose have the powers 
 given to inspectors by the 14th section of the principal Act : 
 
 (2.) If any such surveyor or person finds that any ship is not so provided, he 
 shall give to the master or owner notice in writing, pointing out the de- 
 ficiency, and also what is, in his opinion, requisite in order to remedy the 
 same : 
 
 (3.) Every notice so given shall be comnmnicated in such manner as the Board 
 of Trade may dii-ect to the collector or collectors of customs at any port 
 or ports from which sucli ship may seek to clear or at which her transire 
 is to be obtained ; and no collector to whom such communication is made 
 shall clear such sliip outwards or grant her a transire, or allow her to 
 proceed to sea, without a certificate ruider the hand of one of the said 
 surveyors or other persons appointed by the Board of Trade as aforesaid, 
 to the effect that the said ship is properly provided with lights and 
 with the means of making fog signals iii pursuance of the said regula- 
 tions. 
 
 31. Any rules concerning the lights or signals to be carried by vessels na"\T.- Rules for har- 
 gating the waters of any harbour, river, or other inland navigation, or concerning bom's under 
 the steps for avoiding collision to be taken by such vessels, which have been or continue in 
 are hereafter made by or under the authority of any local Act, shall continue and force. 
 
 be of full force and effect notwithstanding anything in tliis Act or in the schedule 
 thereto contained. 
 
 32. In the case of any harbour, river, or other inland navigation for which such in harbours and 
 rules are not and cannot be made by or under the authority of any local Act, it gJ,^'}J ^uies ex^t 
 
 (b) See 39 & 40 Vict. c. 80, s. 14, as to appeal. 
 3 I 2 
 
 they may be 
 made.
 
 852 
 
 MEECHANT SHIPHNG ACTS AMENDMENT ACT, 
 
 Surveys of 
 steamers. 
 
 Penalties on 
 drunken or 
 (lisordorly pas- 
 sengers. 
 
 On persons 
 
 molesting 
 
 passengers. 
 
 Penalties on 
 persons forcing 
 way on board 
 the ship when 
 full. 
 
 And on persons 
 refusing to quit 
 the ship when 
 full. 
 
 Penalties for 
 avoiding pay- 
 ment of fares. 
 
 shall be lawful for H. M. in council, upon application from tlie harbour trust or 
 body corporate, if any, owning or exercising jurisdiction upon the waters of sucli 
 harbour, river, or inland na\igation, or, if there is no such harboiir trust or body 
 corporate, upon application h-oni persons interested in the na\dgation of such 
 waters, to make miles concerning the lights or signals to be carried, and concerning 
 the steps for avoiding collision to be taken by vessels na^agating such waters ; and 
 such rules, when so made, shall, so far as regai'ds vessels na^^gating such waters, 
 have the same effect as if they were regulations contained in Table (C.) in the 
 schedule to this Act, notwithstanding anything in this Act or in the scheclula 
 thereto contained. 
 
 33. [Eepealed by 36 & 37 Vict. c. 85, s. 33, j^osf.] (a) 
 
 34. Not^^'ithstanding anything in the 311th section of the principal Act con- 
 tained, it shall not be necessary for the surveys of passenger steamers to be made 
 in the months of April and October ; but no declaration shall be given by any 
 surveyor under the 4th part of the said Act for a period exceeding 6 months, 
 and no certificate issued by the Board of Trade shall remain in force more than 6 
 months from the date thereof. 
 
 35. The following offenders, that is to say, 
 
 (1.) An}' person who, being drunken or disorderly, has been on that account 
 refused admission into any duly surveyed passenger steamer by the 
 owner or any person in his employ, and who, after having had the 
 amount of his fare (if he has paid the same) returned or tendered to him, 
 ncA'ertheless persists in attempting to enter such steamer : 
 
 (2.) Any person who being drunken or disorderly on board any sucli steamer is 
 requested by the o"mier or any person in his employ to leave the same at 
 any place in the U. K. at which he can conveniently so do, and who, 
 having had the amount of his fare (if he has paid the same) returned or 
 tendered to him, refuses to comply with such request ; 
 
 (3.) Any person on board any such steamer who after warning by the master or 
 any other officer of the steamer molests or continues to molest any 
 passenger ; 
 
 (4.) Any person who, after having been refused admission into any such steamer 
 by the owner or any jDerson in his employ on account of such steamer 
 being full, and who after having had the full amount of liis fare (if he 
 has paid the same) returned or tendered to him, nevertheless per.sists in 
 attempting to enter the same ; 
 
 (5.) Any person, having got on board any such steamer, who, xipon being re- 
 ([uested on the like account by the owner or any jjerson in his emploj^ 
 to leave such steamer before the same has quitted the place at which 
 such person got on board, and who upon having the full amount of his 
 fare (if he has 23aid the same) returned or tendered to him, refuses to 
 comply with such request : 
 
 (6.) Any person who travels or attempts to travel in any such steamer with- 
 out haAdng previously paid his fai'e, and with intent to avoid payment 
 thereof ; 
 
 (7.) Any person who, having paid his fare for a certain distance, knowingly and 
 "wilfully proceeds in any such steamer beyond such distance without pre- 
 •\aously paying the additional fare for the additional distance, and with 
 intent to avoid payment thereof ; 
 
 (8.) Any person who knowingly and wilfully refuses or neglects, on arriving 
 at the point to which he has jiaid Ms fare, to quit any such steamer ; 
 and — 
 
 (9.) Any person on board any such steamer who does not when required by the 
 master or other ofiicer of such steamer either pay liis fare or exhibit sucli 
 ticket or other receipt (if any) showing the payment of his fare as is 
 iisually given to persons travelling hj and paying their fare for such 
 steamer ; 
 
 (a) See the Qnem. 37 L. .T. Ad. 12. a case de- 
 cided on the repealed section as to salvage ; the 
 Queen. 38 I.. J. Ad. 39. as to the meaning of 
 person in charge ; exj), Ferguson, 40 L. J. Q. B. 
 
 10-5, where it was held there had been a collision 
 between two ships within the meaning of the 
 section ; and see this case as to the meaning of 
 " ship,"
 
 25 & 26 VICT. c. 63. 853 
 
 Sliall for every sucli oH'ence 1)6 liaLle to a penalty not exceeding 40s. ; but such 
 liuljility shall not prejudice the recovery of any fare payable by hiin. 
 
 36. Any person on board any such steamer who wilfully does or causes to be Penalty for 
 
 T ,"i ■ ■ 1 i 1 ^ i • • ,. c i-^ 1 • iniunng steamer 
 
 done anytlnng m such a manner as to obstruct or injure any part ot tne machmery or molesting 
 
 or tackle of such steamer, or to obstruct, impede, or molest the crew or any of crew. 
 
 them in the navigation or management of such steamer, or otherwise in the e.\:ecu- 
 
 tion of tlieir duty upon or about such steamer, shall for every such offence be liable 
 
 to a penalty not exceeding £20. 
 
 37. It shall be lawful for the master or other ofhcer of any duly surveyed apm-ehendiug 
 passenger steamer, and for all persons called by him to his assistance, to detain offenders, 
 any person who has committed any ofl'ence against any of the provisions of the 
 
 two last preceding sections of this Act, and whose name and address are unknown 
 to such officer, and to convey such oli'ender with all convenient despatch before 
 some justice ^^'ithout any warrant or other authority than this Act ; and such 
 justice shall have juriscliction to try the case, and shall proceed with all con- 
 venient despatch to the hearing and determining of the complaint against such 
 offender. 
 
 38. [Eepealed by 36 & 37 Vict. c. 85, s. 33.] 
 
 Pilotage (Part V. of Merchant Sliipping Act, 1854). 
 
 39. Whereas it is enacted by the principal Act that every pilotage authority Power of pilot- 
 shall have power, in manner and subject to the conditions therein mentioned, to tflxem'pTfrom 
 do the following things ; (that is to say,) compulsory 
 
 To exempt the masters of any ships or of any classes of ships fi'oni being com- pilotage. 
 
 pelled to employ quaUhed pilots : t n ■ i 
 
 To lower ancl modify the rates and prices or other remuneration to be j-educe rat^s of 
 demanded and received for the time being by pilots licensed by such pilotage, 
 authority : 
 To make an-angements with any other pilotage authority for altering the limits To arrange the 
 of their respective districts, and for extending the powers of such other autho- a™ districts. ' 
 rity, and transferring its own powers to such last-mentioned authority : 
 And whereas it is expedient that increased facilities should be given for effecting 
 the objects contemplated by the said recited enactments, and for further amending 
 the law concerning pilotage, and that in so doing means should he afforded for 
 paying due regard to existing interests and to the circumstances of particular p^^yg^. ,^^. .p. 
 cases : Be it enacted, that it shall be lawful for the Board of Trade, by provisional visional order,— 
 order, to do the following things ; that is to say, 
 
 (1.) Whenever any pilotage authority residing or having its place of business at To transfer 
 one place has or exercises jurisfbction in matters of pilotage in any other '|ic"ioS? ^""*" 
 port, to transfer so much of the said jurisdiction as concerns such last- 
 mentioned port to any harbour trust or other bodj- exercising any local 
 jurisdiction in maritime matters at the last-mentioned port, or to any 
 body to be constitttted for the purpose by the provisional order, or, in 
 cases where the said pilotage authority is not the Trinity House of Dept- 
 ford Strond, to the said Trinity House ; or to transfer the whole or any 
 part of the jurisdiction of the said pilotage authority to a new body cor- 
 porate or body of persons to be constituted for the purpose by the 
 provisional order, so as to represent the interests of the several ports 
 concerned : 
 (2.) To make the body corporate or persons to whom the said transfer is made Ami to make 
 
 a pilotaL^e atithority within the meaning of the principal Act, with such ;-'''"f,':' -J."™^,, . 
 1 i?i '' i-.i° ••ii-iitiiir arrangements, 
 
 powers lor the purpose as may )je m the pro^^slonaf order in tliat benalt 
 
 mentioned : 
 
 To deternune the limits of the district of the pilotage authority to 
 which the transfer of jurisdiction is made : 
 
 To sanction a scale of pilotage rates to be taken by the pilots to be 
 licensed by the last-mentioned pilotage authority : 
 
 To determine to what extent and under what conditions any pilots
 
 854 
 
 MERCHANT SHIPHNG ACTS AMENDMENT ACT, 
 
 To constitute 
 new authorities. 
 
 To exempt from 
 compnlsoiy 
 l>ilot;igc in any 
 district. 
 
 To enable exist- 
 ing authorities 
 to grant licences 
 and lix rates. 
 
 To raise rates. 
 
 To facilitate 
 I'ccovcry of 
 rates in certain 
 c;u-es. 
 
 To facilitate 
 grants of 
 licences. 
 Regulations 
 with respect to 
 manner of 
 making and 
 continuing pni- 
 visional orders. 
 
 already licensed by the former pilotage autliority shall continue to act 
 under the new pilotage authority : 
 
 To sanction arrangements for the apportionment of any pilotage funds 
 belonging to the pilots licensed by the former pilotage authority 
 between the pilots remaining under the jurisdiction of that aitthority 
 and the pilots who are transferred to the jiuisdiction of the new 
 authority : 
 
 To provide for such compensation or superannuation as may be just to 
 ofHcers employed by the former pilotage authority and not continued by 
 the new authority : 
 
 (3.) To constitute a j^ilotage authority and to fix the limits of its district in any 
 place in the IJ. K. where there is no such authority ; so, however, that 
 in the new pilotage districts so constituted there shall be no compulsory 
 pilotage, and no restriction on the power of duly qualified persons to 
 obtain licences as pilots : 
 
 (4.) To exempt the masters and owners of all ships, or of any classes of ships, 
 from being obliged to employ pilots in any pilotage district or in any 
 part of any pilotage district, or from being obliged to pay for pilots 
 when not employing them in any district or in any part of any pilotage 
 district, and to annex any terms and conditions to such exemptions : 
 
 (5.) In cases where the pilotage is not compulsory, and where there is no 
 restriction on the power of duly qualified persons to obtain licences as 
 pilots, to enable any pilotage authority to license pilots and fix pilotage 
 rates for any part of the district ^^'ithin the jiuisdiction of such authority 
 for which no such licences or rates now exist : 
 
 (6.) In cases where the pilotage is not compulsory, and where there is no 
 restriction on the poAver of duly qualified persons to obtain licenses as 
 pilots, to enable any pilotage authority to raise all or any of the pilotage 
 rates now in force in the district or any part of the district within the 
 jurisdiction of such authority : 
 
 (7.) In cases where the pilotage is not compulsoiy, and Avhere there is no 
 restriction on the number of pilots, or on the power of duly t[ualified 
 jiersons to obtain licences as pilots, to give additional faculties for the 
 recovery of pilotage rates and for the prevention of the employment of 
 unqualified pilots : 
 
 (8.) To give facilities for enabling duly qualified persons, after proper examina- 
 tion as to theii' qualifications, to obtain licences as pilots. 
 
 40. The following rules sliall be observed with respect to provisional orders 
 made in pursuance of this Act : 
 
 1. Application in writing for such order shall be made to the Board of Trade 
 
 l>y some persons interested in the pilotage of the district or in the operation 
 of the law.s or regidations relating to such pilotage : 
 
 2. Notice of such application having ])een made shall be published once at the 
 
 least in each of two siiccessive weeks in the month immediately succeeding 
 the time of such application in the Shipinnrj Ga::dte, and in some news- 
 paper or newspapers circulating in the county, or, if there are more than 
 one, in the counties adjacent to the pilotage district to be aflected by the 
 order : 
 
 3. The notice so published shall state the objects Avhich it is proposed to efi'ect 
 
 by the provisional order : 
 
 4. The Board of Trade on receiving the application shall refer the same to the 
 
 pilotage authority or authorities of the district, and shall receive and 
 consider any objections which may be made to the proposed provisional 
 order, and shall for that purpose allow at least 6 weeks to elapse between 
 the time of referring the application to the pilotage authority and the time 
 of making the provisional order : 
 
 5. The Board of Trade shall, after considering all objections, determine whetlier 
 
 to luoceed Avith the provisional order or not ; and shall, if they determine 
 to proceed witli it, settle it in such manner and with such terms and con- 
 ditions, not being inconsistent with the provisions of this Act, as they may 
 think fit ; and shall, when they liave settled the same, forward copies
 
 25 & 26 VICT. c. 63. 855 
 
 thereof to the persons making the application and to the pilotage authority 
 or authorities of the district or districts to which it refers : 
 
 6. No such provisional order shall take elfect unless and until the same is con- 
 
 firmed by jiarliament ; and for the purpose of procuring such confirmation 
 the Board of Trade shall introduce into parliament a public general bill, or 
 puljlic general bills, in wliicli, or in the schedule to which, the provisional 
 order or provisional orders to he thereby confirmed shall Ijc set out at 
 length : 
 
 7. If any petition is presented to either house of parliament against any such 
 
 provisional order as aforesaid in the progress through parliament of the 
 bill confirming the same, so much of the bill as relates to the order so 
 petitioned against may be referred to a select committee, and the petitioner 
 shall in such case be allowed to appear and oppose as in the case of private 
 bills. 
 
 41. The masters and owners of ships passing through the limits of any pilotage ^xlmpt ion "from 
 district in the U. K. on thek voyages between two places both situate out of sucli cDmpuisory 
 districts shall be exempted from any obligation to employ a pilot within such pilotage. 
 district, or to pay pilotage rates when not employing a pilot within such district : 
 
 pro\uded that the exemption contained in this section shall not apply to ships 
 loading or discharging at any place situate within such district, or at any place 
 situate above such district on the same river or its tributaries. 
 
 42. Whereas under the pro\ision3 of the British Channel Pilotage Act, 1861, AiTangcmcut of 
 pilotage authorities have been established at the ports of Newport and Gloucester, Bristorciwunel 
 and the pilots theretofore licensed by the Trinity House of Deptford Strond for pilots. 
 
 those parts have ceased to be so licensed : And whereas no provision has been 
 made by the said Act for dealing with such interests as the said pilots may have 
 in the Trinity House pilot fund mentioned in the principal Act : Be it therefore 
 enacted, that, notwithstanding the said pilots have ceased to ])e licensed by the 
 Trinity House, the Trinity House may make such an equitable arrangement in 
 the administration of the Trinity House pilot fund mentioned in the principal 
 Act with reference to the interests of the pilots so ceasing to be licensed hj them 
 as aforesaid as they may in their discretion think fit. 
 
 Lighthouses {Part VI. of Merchant Bhipiiincj Act, 1854). 
 43. The followiiiG; rules shall be observed with respect to the inspection of local Lis'it'^- &c-. 
 
 Til 1 ^11 iii-i under iDcal 
 
 lighthouses, buoys, and beacons ; that as to say, amlKiritics to be' 
 
 (1.) It shall be the duty of eacli of the general lighthouse authorities, or of such inspected, &c., 
 persons as may be authorized by such authority for the purpose, to iion,™and 
 inspect all Lights, luioys, and beacons situate within the limits ol the other general 
 jurisdiction of sucli general authority, but belonging to or under the authorities, 
 jiuisdiction of any local authorities, and to make such iufjuiries in respect 
 thereof and of the management thereof as they may think fit : 
 
 (2.) All oflicers and others having the care of such lighthouses, buoys, or 
 beacons, or concerned in the management thereof, shall furnish all such 
 information and explanations concerning the same as they may require : 
 
 (3.) All such local authorities and their respective officers shall at all times give 
 to the inspecting authority all such returns, explanations, or information 
 concerning the lighthouse^, buoys, and beacons within theii- jurisdiction, 
 and the inanagement thereof, as the said authority nuxy from time to 
 time require : 
 
 (4.) The inspecting authority shall communicate to each local authority the 
 results of its inspection of the lighthouses, buoys, and Vieacons within its 
 jurisdiction, and shall also make general reports of the results of its 
 inspection of local lighthouses, buoys, and beacons to the Board of Trade ; 
 and such reports sliall Ije laid Ijefore parliament : 
 
 (.5.) The powers given by the 394th section of the principal Act to the general 
 lighthouse authorities shall, so far as the same are applicaljle, extend and
 
 856 
 
 MERCHANT SHIPPING ACTS AMENDMENT ACT, 
 
 Liabilitj' for 
 ;iu(l recovery of 
 light dues. 
 
 Powers of con- 
 signees to retain 
 light dues paid 
 by them. 
 
 Dues may be 
 levied for local 
 lights. 
 
 Application of 
 and accounts of 
 such dues. 
 
 Construction of 
 sect. 431 of 
 principal Act. 
 
 apply to the case of local buoys and beacons otlier than local buoys and 
 lieacons placed or erected for temporary purposes, as well as to the case 
 of local lighthouses. 
 
 44. The following persons shall be liable to paj^ light dites for any ship in 
 respect of which light dues are payable ; (that is to say,) the owner or master, or 
 stich consignees or agents thereof as have paid or made themselves liable to pay 
 any other charge on accoitnt of stich ship in the port of her arrival or discharge, 
 and in default of payment such light dttes may be recovered in the same inanner 
 as penalties of the like amottnt may be recovered by virtue of the principal 
 Act. 
 
 45. Every consignee and agent (not being the owner or master) hereby made 
 liable for the payment of light dues in respect of any ship may, ottt of any monies 
 in his hands received on accotmt of such shij), or belonging to the owner thereof, 
 retain the amount of all dues so joaid by him, together with any reasonable 
 expenses he may have incurred by reason of such payment or lial)ility. 
 
 46. If any lighthouse, bttoy, or beacon is erected or placed, or reconstructed, 
 repaired, or replaced by any local aitthority having jtirisdiction in the matter of 
 lighthouses, buoys, or beacons, H. M. may, on tlie application of the said local 
 authority, by order in council, fix such dues to be paid to the said local authority 
 in respect of every ship which enters the port or harbotir under the jurisdiction of 
 such local authority or the estuary wherein such lighthoitse, btioy, or beacon is 
 situate, and which passes the said lighthouse, buoy, or beacon, and derives benefit 
 therefrom, as H. M. may deem reasonable : 
 
 The dues for the time being fixed by any such order in council as aforesaid shall 
 be paid accordingly by the master of the said ship or other person or persons 
 by whom the said light dues, if levied l^y one of the general lighthouse authorities, 
 would be i^ayable, and shall lie recoverable in the same manner as light dues pay- 
 able to such general authorities are recoverable. 
 
 47. All light dites leviable by any local authority under this Act shall be 
 applied for the pttrposes of the construction, placing maintenance, and improve- 
 ment of the lighthouses, buoys, and beacons in respect of wliich the same are 
 levied, and for no other piu'pose : 
 
 The local authority to whom the same are paid shall keep a separate accoitnt of 
 the receipt and expenditure of such dues, and shall once in every year, or at such 
 other time as the Board of Trade may determine, send a copy of such account to 
 the Board of Trade, and shall send the same in such form and shall give sucli 
 particitlars in relation thereto as the Board of Trade may re(j[uire : 
 
 H. i\I. may by order in council from time to time reduce, alter, or increase all 
 or any of such dues, so that the same may, so far as it is practicable, be sufficient 
 and not more than sufficient for the payment of the expenses incurred liy the local 
 aitthority in respect of the lighthouses, l3U0j"s, or beacons for ■\^'hich the dues are 
 levied. 
 
 48. The 431st section of the principal Act shall be read as if after the word 
 " Ships " there were inserted the words " and Boats." 
 
 fVrech and Salvage {Part VIII. of Merchant Shipinmj Act, 1854.) 
 
 Extension and 49. The provisions contained in the 8th part of the principal Act for giving 
 amondment summary jurisdiction to two justices in salvage cases, and for preventing unueces- 
 j'uHsdSbii S'^iy appeals and litigation in such cases, shall be amended as follows ; (that is to 
 in small salvage say,) 
 ^^^^^' (1.) Sitcli provisions shall extend to all cases in -which the value of the property 
 
 .saved does not exceed ^1,000 (a), as well as to the cases provided for by 
 
 the principal Act : 
 (2.) Such provisions shall be held to apply whether the salvage ser\ice has been 
 
 rendered within the limits of the U. K. or not : 
 
 {a ) That is to say, tlic value when brought into 
 a place of safety by tlie salvors; the .Strllu, .36 
 L. J. Ad. 13 ; 1 L. H. Ad. 340. Bmdncll v. Bittsou, 
 
 37 L. .J. Q. B. 171 ; 3 L. 11. (.). 13. 439, tvherc 
 there was a salvage agi'ecment for a fixed sum.
 
 25 & 26 VICT. 0. 63. 857 
 
 (3.) It pliall be lawful for one of H. M.'s principal secretaries of state, or in 
 Ireland for the lord lieutenant or other chief governor or governors, to 
 appoint out of the justices for any borough or county a rota of justices by 
 "whom jurisdiction in salvage cases sliall be exercised : 
 
 (4.) When no such rota is appointed, it shall be lawful for the salvors, by writ- 
 ing addressed to the justices' clerk, to name one justice, and for the owner 
 of the property saved in like manner to name the other : 
 
 (5.) If either party fails to name a justice within a reasonable time, the case 
 may be tried by two or more justices at petty sessions : 
 
 (6.) It shall be competent for any stipendiary magistrate, and also in England 
 for any county court judge (5), in Scotland for the sheriff or sheriff sub- 
 stitute of any county, and in Ireland for the recorder of any borough in 
 Avhich there is a recorder, or for the chairman of c|uarter session iji 
 any county, to exercise the same jurisdiction in salvage cases as is given 
 to two justices : 
 
 (7.) It shall be lawful for one of H. M.'s principal secretaries of state to deter- 
 mine a scale of costs to be awarded in salvage cases by any such justices 
 or court as aforesaid. 
 
 (8.) All the provisions of the principal Act relating to summary proceedings in 
 salvage cases, and to the prevention of unnecessary appeals in such cases, 
 shall, except so for as the same are altered by this Act, extend and apply 
 to all such proceedings, whether under the principal Act or this Act, or 
 both of such Acts. 
 
 50. Whenever any salvage question arises the receiver of wreck for the district Receiver may 
 may, ujjon application from either of the parties, appoint a valuer to value the yjuuer hf 
 property in respect of which the salvage claim is made, and shall, when the valua- .salvage cases 
 tion has been returneil to him, give a copy of the valuation to both parties ; and 
 
 any copy of sucli valuation, purporting to be signed by the valuei', and to be 
 attested by the receiver, shall be received in evidence in any subsefpient proceed- 
 ing ; and there shall be paid in respect of such valuation, by the party applying 
 for the same, such fee as the Board of Trade may direct. 
 
 51. The words "Court of Session "in the 468th section of the principal Act Jurisdiction 
 shall be deemed to mean and include either division of the Court of Session or the ^^ tipuit of 
 lord ordinary officiating on the bills during vacation. salvage cases. 
 
 52. Upon delivery of wreck or of the proceeds of wreck by any receiver to any Dolivciy of 
 person in pursuance of the provisions of the 8th part of the principal Act sucli wreck by rc- 
 receiver shall be discharged from all liability in respect thereof, but such delivery ^^^'^ *:'"• "V?'. 
 shall not be deemed to prejudice or affect any question concerning the right or title. 
 
 title to the said wreck Avhich may be raised by third parties, nor shall any such 
 delivery prejudice or affect any question concerning the title to the soil on which 
 the wreck may have been found. 
 
 53. "Wliereas by the principal Act it is provided that the proceeds of wreck, if crown rights 
 the same is not claimed by the owner within a year, and if no person other than to wreck. 
 H. M., her heirs and .successors, is proved to he entitled thereto, .shall, subject to 
 
 certain deductions, be paid into the receijrt of H. M.'s exchequer in such manner 
 as the commis.sioners of the treasury may direct, and that the same shall be carried 
 to and form part of the consolidated fund of the U. K. : 
 
 And whereas doubts have been entertained whether the said last-recited provi- 
 sion is consistent Avith the arrangements concerning the hereditary revenues of the 
 crown effected by the Act of the 1 Vict. c. 2 : And Avhereas doubts have also been i Vict. c.2. 
 entertained whethei' due provision is made by the said Act for paying to the 
 revenues of the duchies of Lanca.ster and Cornwall respectively such of the said 
 j)roceeds as may belong to those duchies : 
 
 It is hereby declared, that such of the said proceeds of wreck as belong to H. M. 
 in riglit other crown shall, during the life of her present Majesty (whom God long 
 preserve), be carried to and form part of the consolidated fund of the U. K., and 
 shall after the decease of her present Majesty (whom God long preserve) be pay- • 
 able and paid to H. M.'s heirs and successors : 
 
 And it is hereby further declaimed, that such of the said proceeds of wreck as 
 
 (Jj) Sec BeadntU v. Bccton, ante, p. 8CG.
 
 858 MERCHANT SHIPPING ACTS AMENDMENT ACT, 
 
 belong to H. M. in right of her duchy of Lancaster shall be paid to the receiver- 
 general of the said cUichy or his sntticient deputy or deputies, as part of the 
 revenues of the said duchy, and l^e dealt with accordingly : 
 
 And it is hereby fiu-ther declared and enacted, that the provision in the prin- 
 cipal Act contained regarding the sale of unclaimed Avreck to -which no o^\^le^ 
 establishes his claim -within the period of one year, and to -which no admiral, vice- 
 admiral, lord of any manor, or person other than H. M., her heirs and successors, 
 is x^roved to he entitled, is intended and shall be construed to apply to -wreck of 
 the sea belonging to H. ]\I., her heirs and successors, in respect of the duchy of 
 Cornwall, or to the Duke of Cornwall for the time being in respect of his duchy of 
 Cornwall : But that the i)roceeds of such M^eck shall, subject to such deductions 
 as are in the same Act mentioned, form part of the revenues of the duchy of 
 Cornwall, and be dealt with accordingly. 
 
 LiaUUty of Bhipoivncrs {Part IX. of Merchant Shipimicj Act, 1854). 
 
 Shipo-nncrs 54. The owners of any ship {a), whether British or foreign {h), shall not, in cases 
 
 I'iinu'i'lu where all or any of the following events occur without "theu- (e) actual fault or 
 
 privity, that is to say, 
 
 (1.) Where any loss of life or personal injiuy is caused to any person being 
 
 carried iu such ship ; 
 (2.) Where anj^ damage or loss is caused to any goods, merchandise, or other 
 
 things whatsoever on board any such ship ; 
 (3.) Where any loss of life or j)ersonal injury is by reason of the improper 
 navigation of such ship as aforesaid caused to any person carried in any 
 other ship or boat ; 
 (4.) Where any loss or damage is by reason of the improper navigation of such 
 ship as aforesaid caused to any other ship or boat, or to any goods, 
 merchandise, or other thing whatsoever on board any other ship or 
 boat (f?) ; 
 be answerable in damages (e) iu respect of loss of life or personal injury, either 
 
 (n) Must be a registered ship under sect. 19 of and to prove for the balance against the fund in 
 
 17 & 18 -Vict. c. 104, ante, p. 637. The Andainsian, court ; but the defendants insisted that tliey Iiad 
 
 47L. J.Ad. 65. discharged their liability by the pajiuent into 
 
 {b) This .section applies -u-here the collision is court, and -nerc entitled to be paid in full the 
 
 -within or without British jurisdiction. The damages due to them. The Master of the Ilolls 
 
 Amelia, 1 Moo. P. C. (x.s.) 471. having decided that the plaintiffs Averc entitled to 
 
 (c) The misconduct of one parto-u-ner will not the set-off they claimed -.—Held, on ajipcal (re- 
 
 afifect the riglit of the others to Ihuited liability versing the decision of the Master of the Rolls), 
 
 under this section. The Spirit of the Ocean, per Baggallay. L. J., and Cotton. L. J. (iha- 
 
 34 L. J. Ad. 74 ; the Obei/, L. R. 1 A. & K. 102 ; sentiente Brett. L. J.), that the phrase '• an- 
 
 M'ilsou y. Dickson,! B. k, A. 2. As to loss of s-svcrable in damages" in the 64th section 
 
 life, see Glaholm v. Barlxr,!,. R. 1 Ch. 228. A of the M. S. Act. 1862, meant tlie aggregate 
 
 ship o-svner is entitled to the benefit of this damage occasioned to one ship by the mi- 
 
 scction tliough a canier bv land, London d- f<. proper navigation of the other, and that it was 
 
 11'. It. Co., V. James, L. R. 8'Ch. 241. in respect of .such damage that limited liability 
 
 ((/) A damage to a vessel whilst being towed, was given by the Act. and not in respect of the 
 
 caused bv the improper navigation of the tug ultimate balance which, under tlie procedure of 
 
 •which was towing it, is within this section, any court having jurisdiction, might be payable 
 
 ^yahlbclv\■. Yoiiim, 45 L. J. C. P. 783. on the iinal adjustment of all mattersof account 
 
 (c) In an Admiralty action for damages caused arising out of the collision. And, therefore, that, 
 
 by a collision, the defendants put in a counter- as the defendants in the Admiralty action had 
 
 claim for damasjes, and judgment was given claimed the benefit of the Ihuited liability given 
 
 declaring both ships to blame, and condemning by the Act, there could be no set-off :—i/e«'', per 
 
 each in a nioietv of the damaaes caused to tlie Urett. L. J., that tlic phrase •■answerable ni 
 
 other. The defendants then brought an .action damages " only applied to the last i>roccc(ling of 
 
 in the Chancery Division, under sect. 514 of the whole litigation.?'.^., that the ultimate balance 
 
 the M. S. Act, 1854. against the plaintiffs, of the two looses ought to be ascertained in tbe 
 
 and others, to limit the amount of their lia- usual way. and that the 54th section ouuiit only 
 
 bility, and under an order of court paid into to be applied -n-heu the court was about to dis- 
 
 court the amount of their statutory liability, fc tribute the limitation amount amongst the 
 
 cn(iuiries were directed to ascertain the parties several claimants : Cliapman v. lioiial ^cther- 
 
 cntitled to prove against the fund. The plaintiffs lands Steam Sliip Co.. 48 L. J. Ch. 449; L. R. 
 
 in the Admiraltv action claimed to set off the 4 P. D. 157. See the Empusa, L. R. 6 P. D. 6. 
 
 damasiesdue from them to the defendants against where several questions were determined lu au 
 
 the damages due to them from the defendants, action for limitation of liability.
 
 25 & 26 VICT. c. 63. . 859 
 
 alone or together witli loss or damage to ships, boats, goods, merchandise, or other 
 things, to an aggregate amount (/) exceeding £15 for each ton of their ship's 
 tonnage ; nor in respect of loss or damage to ships, goods, merchandise, or other 
 things, whether there be in addition loss of life or personal injury, or not, to an 
 aggregate amount exceeding £S for each ton of the ship's tonnage ; such tonnage 
 to be tlie registered tonnage in the case of sailing ships, and in the case of steam 
 ships the gross tonnage, without deduction on account of engine room : 
 
 In the case of any foreign ship which has been or can be measured according to 
 British law, the tonnage as ascertained by such measurement shall, for the pur- 
 poses of this section, be deemed to be the tonnage of such ship : 
 
 In the case of any foreign ship which has not l^een and cannot be measured 
 under British law, the surveyor-general of tonnage in the U. K., and the chief 
 measuring officer in any British possession abroad, shall, on receiving from or by 
 direction of the court hearing the case sucli evidence concerning the climensions of 
 the ship as it may be found practicable to furnish, give a certificate under his hand, 
 stating what would in his opinion have been the tonnage of such ship if she had 
 been duly measured according to British law, and the tonnage so stated in such 
 certificate shall, for the purposes of this section, be deemed to be the tonnage of 
 such ship. 
 
 55. Insurances effected against any or all of the events enumerated in the bimit'ition of 
 section last preceding, and occurring Avithout such actual fault or privity as therein insm-'uices? 
 mentioned, shall not be invalid by reason of the nature of the risk. 
 
 56. In any proceeding under the 506th section of the prhicipal Act or any Act ^pi^s'^on board'^' 
 amending the same against the owner of any ship or share therein in respect of fost ship. 
 
 loss of life, the master's list or the duplicate list of passengers delivered to the 
 proper officer of customs under the 16th section of " The Passengers Act, 1855," 
 sliall, in the absence of proof to the contrary, be sufiicient proof that the persons in 
 respect of whose death any such prosecution or proceeding is instituted were pas- 
 sengers on board such ship at the time of their deaths. 
 
 Arrangements concerning Lights, Sailing Rules, Salvage, and Measurement of 
 Tonnage in the Case of Foreign Shijjs. 
 
 67. Whenever foreign ships are within British jurisdiction, the regulations for ^'^Rrft^^jf'^^^^ 
 preventing collision contained in Table (C.) in the schedule to this Act, or such jurisdiction 
 other regulations for preventing collision as are for the time being in force under i" i^o subject 
 this Act, and all provisions of this Act relating to such regulations, or otherwise jj" Tifwe'ca"^ 
 I'elating to collisions, shall apply to such foreign ships ; and in any cases arising in scliedulc. 
 in any British court of justice concerning matters happening within British juris- 
 diction, foreign ships shall, so far as regards such regulations and provisions, be 
 treated as if they were British ships. 
 
 58. Whenever it is made to appear to H. M. that the government of any foreign Regulations 
 country is willing that the regulations for preventing collision contained in Table ^v a"fore'"*ii*^ 
 (C.) in the schedule to this Act, or such other regulations for preventing collision as. country, may 
 are for the time being in force under this Act, or any of the said regulations, or ^^ .■'i;'^'*°^\ 
 any jn'ovisions of this Act relating to collisions, should apply to the ships of such on'the liigu 
 country when beyond the limits of British jurisdiction, H. ]\I. may, by order in seas. 
 council, direct that such regulations, and all provisions of this Act which relate 
 
 to such regulations, and all such other provisions as aforesaid, shall apply to the 
 ships of the said foreign coimtry, whether within British jurisdiction or not. 
 
 59. Whenever it is made to appear to H. M. that the government of any foreign rrovisinm 
 country is willing that salvage shall be awarded by British courts for services *:."l'?.'^i'',''"?,.^. 
 rendered in saving life from any ship Ijelonging to such country when such ship is may, with 
 beyond the limits of Britisli jurisdiction, H. M. may, by order in council, direct tlic consent 
 that the provisions of the principal Act and of tliis Act, with respect to salvage for counn-y"be'°" 
 services rendered in saving life from British ships, shall in all British courts be apiiiiedtoits 
 
 ships on the 
 ______^_^ high seas. 
 
 (/) As to the sliipowncrs liability to pay intercut on tlic limited auiouut, sec tlie Xovthmnbiia, 
 L. U. 3 A. & E, 0-; 39 L. J. Ad. 3.
 
 860 
 
 MERCHANT SHIPPING ACTS AMENDMENT ACT, 
 
 Ships of foreign 
 countries 
 adopting the 
 rule for mea- 
 surement of 
 tonnage need 
 not be re-mea- 
 sured in this 
 couutrj'. 
 
 Effect of order 
 in council. 
 
 Orders in 
 council may 
 be limited as 
 to time and 
 qualified. 
 Orders in 
 council may 
 be revoked 
 and altered. 
 
 Orders in 
 council to 
 be published 
 in London 
 Gazette. 
 
 held to upi ily to services rendered in saving life from tte ships of such foreign 
 country, whether such services are rendered within British jurisdiction or not. 
 
 GO. \Vhenever it is made to appear to H. M. that the rules concerning the mea- 
 surement of tonnage of merchant ships for the time being in force under the prin- 
 cipal Act have been adopted by the government of any foreign country, and are in 
 force in that country, it shall ' be lawful for H. M. by order in coimcil to direct 
 that the ships of such foreign country shall be deemed to be of the tonnage denoted 
 in their certiticates of registry or other national papers ; and thereupon it shall no 
 longer be necessary for such ships to be re-measured in any port or place in H. M.'s 
 dominions, but such ships shall be deemed to be of the tonnage denoted in theii- 
 certificates of registry or other papers, in the same manner, to the same extent, 
 and for the same purposes in, to, and for which the tonnage denoted in the certiti- 
 cates of registry of British ships is deemed to be the tonnage of such ships. 
 
 61. Whenever an order in council has been issued under this Act, applying any 
 provision of this Act or any regulation made by or in pursuance of this Act to the 
 ships of any foreign country, such ships shall in all cases arising in any British 
 coiu't be deemed to be subject to such provision or regulation, and shall for 
 the piu-pose of such provision or regulation be treated as if they were British 
 ships. 
 
 62. In issuing any order in coimcil under this Act H. M. may Uniit the time 
 dm-ing wliich it is to remain in operation, and may make the same subject to such 
 conditions and c^ualifications, if any, as may be deemed expedient, and thereupon 
 the ojieration of the said order shall be limited and modified accordingly. 
 
 63. H. ]\I. may by order in coimcil from time to time revoke or alter any order 
 previously made under this Act. 
 
 64. Every order in council to be made under this Act shall be published in the 
 London Gauttc as soon as may be after the making thereof ; and the production 
 of a copy of the London Gazette containing such order shall be received in evidence, 
 and shall be proof that the order therein published has been duly made and 
 issued ; and it shall not be necessary to plead such order speciallj'. 
 
 Legal Procedure. 
 
 20 & 21 Vict. 
 c. 43. s. 3, not 
 to apply to 
 proceedings 
 under Board 
 of Trade or 
 this Act, ;&c. 
 
 65. Nothing in the 3rd section of the Act, 20 & 21 Vict. c. 43, except .so much 
 thereof as provides for the payment of any fees that may be due to the clerk of 
 the justices, shall be deemed to apply to extend to any proceeding under the 
 direction of the Board of Trade, or under or by ^drtue of the provisions of the 
 principal Act or this Act, or any Act amending the same. 
 
 Delivery of Goods and Lien for Freight. 
 
 Interpretation 
 of tenus. 
 
 '• Report.'' 
 " Entiy." 
 
 " Goods." 
 " "SVliarf." 
 
 "Warehouse."' 
 
 " Wharf- 
 owner." 
 
 '■ Warehouse 
 o\\Tier." 
 
 66. The follo-ning terms used in the sections of this Act hereinafter contained 
 shall have the respective meanings hereby assigned to them, if not inconsistent 
 with the context or subject matter ; that is to say. 
 
 The word "Report" shall mean the report re([iiired by the customs laws to be 
 made by the master of any importing ship : 
 
 The word " Entry" shall mean the entry requu'ed by the customs laws to be 
 made for the landing or discharge of goods from an importing ship : 
 
 The word " Goods " shall include every description of wares and merchandise : 
 
 The word "Wharf" shall include all wharves, <iuays, docks, and piremises in or 
 upon which any goods when landed from ships may be la-\\-fiilly placed : 
 
 The word "Warehouse" shall include all warehouses, buildings, and premises, 
 in which goods when landed from ships may be lawfully placed : 
 
 The expression "Wharf-owner" shall mean the occuijier of any wharf, as here- 
 inbefore defined : 
 
 The expression " Warehouse Owner" shall mean the occuj^ier of any warehouse, 
 as hereinbefore defuied :
 
 25 & 26 VICT. c. 63. 861 
 
 The word " Sliipo-maer" sliall include the master of the ship and every other "Snipowner," 
 person authorized to act as agent for the owner, or entitled to receive the 
 freight, demurrage, or other charges payable in respect of such ship : 
 
 The expression " Owner of Goods" shall include every person who is for the " Owner of 
 time being entitled, either as owner or agent for the owner, to the possession soods." 
 of the goods, subject in the case of a lien, if any, to such lien. 
 
 67. Where the owner of any goods imported in any ship from foreign parts Power to ship- 
 into the U. K. fails («) to make entry thereof, or having made entry thereof to gnter'^and 
 land the same or take delivery thereof and to proceed therewith with all con- land goods 
 venient speed, b}^ the times severally hereinafter mentioned, the shipo-uaier may in default of 
 make entry of and land or unship the said goods at the times, in the manner, and landing by 
 subject to the conditions following ; (that is to say,) o-n-ner of goods. 
 
 (1.) If a time for the delivery of the goods is expressed in the charter-party, bill 
 of lading, or agreement, then at any time after the time so expressed : 
 
 (2.) If no time for the delivery of the goods is expressed in the charter-party, 
 bill of lading, or agreement, then at any time after the expiration 
 of 72 hours, exclusive of a Sunday or holiday, after the report of the 
 ship : 
 
 (3.) If any wharf or warehouse is named in the charter-party, bill of lading, or 
 agreement, as the wharf or A^arehouse where tlie goods are to be placed, 
 and if they can be conveniently there received, the shipowner in landing 
 them by vii'tue of this enactment shall cause tliem to be placed on such 
 wharf or in such warehouse : 
 
 (4.) In other cases the sliipowner in landing goods by virtue of this enactment 
 shall place them in or on some wharf or warehoixse on or in which goods 
 of a like nature are usually placed ; such wharf or warehouse being, if 
 the goods are dutiable, a wharf or warehouse duly approved by the com- 
 missioners of customs for the landing of dutiable goods : 
 
 (5.) If at any time before the goods are landed or unshipped the o-mier of the 
 goods is ready and offers to land or take delivery of the same, he shall be 
 allowed so to do, and his entry shall in such case be preferred to any 
 entry wliich may have been made by the shipowner : 
 
 (6.) If any goods are, for the purpose of convenience in assorting the same, 
 landecl at the wharf where the ship is discharged, and the owner of the 
 goods at the time of such landing has made entry and is ready and offers 
 to take deliverj^ thereof, and to convey the same to some other wharf or 
 warehouse, such goods shall be assorted at landing, and shall, if demanded, 
 be delivered to the OAViier thereof within 24 hours after assortment ; and 
 the expense of and consequent on such landing and assortment shall be 
 borne by the sliipowner : 
 
 (7.) If at any time before the goods are landed or unshipped the owner thereof 
 has made entry for tlie landing and warehousing thereof at any particular 
 wharf or warehouse other than that at which the ship is discharging, and 
 has offered and been ready to take delivery thereof, and the s]iip)owner 
 has failed to make such delivery and has also failed at the time of such 
 offer to give the owner of the goods correct information of the time at 
 which such goods can be delivered, then the shipowner shall, l^efore 
 lauding or imshipping such goods under the power hereby given to him, 
 give to the OA^aier of the goods or of such wharf or warehouse as last afore- 
 said 24 hours notice in writing of his readiness to deliver the goods, and 
 shall, if he lands or unships the same without such notice, do so at his 
 own risk and expense. 
 
 68. If, at the time when any goods are landed from any ship, and placed in the if, when goods 
 custody of any person as a wharf or warehouse owner, the shipowner gives to the ^^'? landed, the 
 wharf or warehouse owner notice in writing that the goods are to remain subject notierforMat' 
 to a lien (b) for freight or other charges payable to the shipowner to an anioimt to purpose, the lien 
 be mentioned in such notice, the goods so landed shaU, in the hands of the wharf contimfe.*'^ ^^ ^'^ 
 
 (a) This docs not imply wUhil default, the not claim iu the notice more than there is a lieu 
 Energie, L. R. 6 P. C. 3ie ; 44 L. J. Ad. 25. for (i&). 
 
 (b) The Encrijie, sujjra. The master should
 
 S62 
 
 MEECHANT SHIPriNG ACTS AMENDMENT ACT, 
 
 Lien to be dis- 
 cliargedou proof 
 of pajment. 
 
 lAon to be dis- 
 fhararcd on 
 deposit witli 
 warehouse 
 owner. 
 
 Warcliouse 
 owner may at 
 the end of IS 
 days, if no notice 
 is given, pay 
 deposit to ship- 
 OflTier. 
 
 Course to be 
 taken if notice 
 to retain is 
 given. 
 
 After 90 days 
 warehouse 
 owner may sell 
 goods by public 
 auction. 
 
 Notices of sale 
 to be given. 
 
 Monies arising 
 from sale, how 
 to be applied. 
 
 or wareliouse owner, continue liable to the same lien, if any, for sncli charges as 
 they -were subject to before the landing thereof ; and the wharf or warehouse o^\^le^ 
 receiving such goods shall retain them until the lien is discharged as hereinafter 
 mentioned, and shall, if he fail so to do, make good to the shipowner any loss 
 thereby occasioned to him. 
 
 G9. Upon the production to the -wharf or warehouse owTier of a receipt for the 
 amount claimed as due, and delivery to the wharf or warehouse owner of a copy 
 thereof or of a release of freight from the shipowner, the said lien shall be dis- 
 charged, (a) 
 
 70. The owner of the goods may deposit with the wharf or warehouse owner a 
 .sum of money e(pial in amount to the sum so claimed as aforesaid by the ship- 
 owner, and thereupon the lien shall be discharged ; but without prejudice to 
 any other remedy which the shipowner may have for the recovery of the freight. 
 
 71. If such deposit as aforesaid is made wdth the wharf or warehouse owner, 
 and the person making the same does not within 15 days after making it give to 
 the wharf or warehoitse owner notice in waiting to retain it, stating in such notice 
 the sum, if any, which he admits to be payable to the ship owner, or as the case 
 may be, that he does not admit any stun to be so payable, the wharf or warehouse 
 owner may, at the expiration of sitch. 15 days, pay the sum so deposited over 
 to the sliijDowner, and shall by such payment be discharged from all liability in 
 respect thereof. 
 
 72. If such deposit as aforesaid is made witli the wharf or warehouse owner, 
 and the person making the same does within 15 days after making it give to the 
 wharf or warehouse owner such notice in writing as aforesaid, the wharf or ware- 
 hoitse owner shall immediately apprize the shipo-mier of such notice, and shall 
 pay or tender to him out of the sum deposited the sum, if any, admitted by such 
 notice to be payable, and shall retain the reniainder or balance, or, if no sum is 
 admitted to be payable, the whole of the sum deposited, for 30 days from the date 
 of the said notice ; and at the expii-ation of such 30 days, imless legal proceedings 
 have in the meantime been instituted by the shipowner against the owner of the 
 goods to recover the said balance or sum or otherwise for the settlement of any 
 disputes which may have arisen between them concerning such freight or other 
 charges as aforesaid, and notice in writing of such j^roceedings has been served on 
 liim, the wharf or warehouse owner shall pay the faicl balance or sum over to the 
 o^\^ler of the goods, and shall liy such payment be dischai-ged from all liability in 
 respect thereof. 
 
 73. If the lien is not discharged, and no deposit is made as hereinbefore men- 
 tioned, the Avharf or Avarehouse ©"oiier may, and, if reixiiired by the shipowner, 
 shall, at the expiration of 90 days from the time when the goods were placed 
 in his custody, or, if the goods are of a perishable nature, at such earlier period as 
 he in his discretion tliinks fit, sell by public auction, either for home use or exjjor- 
 tation, the said goods or so much thereof as may be necessary to satisfy the charges 
 hereinafter mentioned. 
 
 74. Before making such sale the w^harf or warehouse owner shall give notice 
 thereof by advertisement in two newspai:)ers circulating in the neighbourhood, or 
 in one daily newspaper published in London and in one local newspaper, and also, 
 if the address of the owner of the goods has been stated on the manifest of the 
 cargo, or on any of the docimients which have come into the possession of the 
 wharf or wai-ehouse o\\-ner, or is otherwise know^n to him, give notice of the sale 
 to the owner of the goods liy letter sent by the post ; but the title of a bond fide 
 purchaser of such goods shall not be invalidated by reason of the omission to send 
 notice as hereinbefore mentioned, nor shall any such purchaser be bound to inquire 
 Avhether .such notice has been sent. 
 
 75. In every case of any such sale as aforesaid the wharf or warehouse owner 
 shaU apply the monies received from the sale as foUows, and in the following 
 order : 
 
 1. If the goods are sold for home use in payment of any customs or excise duties 
 
 owing in respect thereof : 
 
 2. In payment of the expenses of the sale : 
 
 (a) See note, ante, p. 861. 
 
 1
 
 25 & 26 VICT. c. 63. 863 
 
 3. In tlie absence of finy agreement between tlie wharf or warehouse owner and 
 
 the sliipowner concerning the priority of their respective charges, in pay- 
 ment of the rent, rates, and other charges due to the wharf or warehouse 
 owner in respect of the said goods : 
 
 4. In payment of the amount claimed by the shipowner as due for freight or 
 
 other charges in respect of the said goods : 
 
 5. But in case of any agreement between the wharf or warehouse owner and the 
 
 shipowner concerning the priority of their respective charges, then sucli 
 charges shall have priority according to the terms of sucli agreement : 
 and tlie surplus, if any, shall be paid to the owner of the goods : 
 
 76. Whenever goods are placed in the custody of a wharf or warehouse owner Warelioupe 
 under the authority of this Act, the said wharf or warehouse owner sliall be entitled e^engg;^;''"* '^"'^ 
 to rent in respect of the same, and shall also have power from time to time, at the 
 
 expence of the owner of the goods, to do all such reasonable acts as in the judg- 
 ment of the said wharf or warehouse owner are necessary for the proper custody 
 and preservation of the said goods, and shall have a lien on the said goods for the 
 said rent and expenses. 
 
 77. Nothing in this Act contained shall compel any Avharf or warehouse owner vrarohouso 
 
 to take charge of any goods whicli he would not be liable to take charge of if this °^^'^^' ^ i'^"°*<^^- 
 Act had not passed ; nor shall he be bound to see to the validity of any lien 
 claimed by any shipowner under this Act. 
 
 78. Nothing in this Act contained shall take away or abridge any powers given Saving powers 
 by any local Act to any harbour trust, body corporate, or persons whereby they ^V^'^^^' ^^^^^ 
 are enabled to expedite the tlischarge of ships or the landing or delivery of goods ; 
 
 nor shall anything in tliis Act contained take away or diminisli any rights 
 or remedies given to any shipowner or wharf or warehouse owner by any local 
 Act.
 
 864 
 
 MEECHANT SHIPPING ACTS, &0., 25 & 26 VICT. C. 63. 
 
 THE FOLLOWING IS FROM THE SCHEDULE REFERRED TO IN THIS 
 ACT, WHICH SCHEDULE ALSO SETS OUT THE TITLES OF THE 
 ACTS REFERRED TO. 
 
 TABLE (A.) See Sect. 2. 
 Enactments to he repealed. 
 
 Reference to Act. 
 
 Extent of Repeal. 
 
 8 & 9 Vict. c. 9L 
 
 Section 51 to be repealed inimetliately 
 on the passing of tliis Act. 
 
 16 & 17 Vict. c. 107. 
 
 The last pro\'iso in section 74, and sec- 
 tions 170, 171, and 172, to be repealed 
 immediately on the passing of this 
 Act. 
 
 17 & 18 Vict. c. 104 
 
 Sections 295, 296, 297, 298, 299, to lie 
 repealed from the date at -wliich the 
 regulations contained in Table C. in 
 this schedule come into operation. 
 Sections 300, 322, 323, 504, and 505 
 to be repealed immediately on the 
 passing of tliis Act. 
 
 19 & 20 Vict. c. 75. 
 
 Section 8 to be repealed immediately 
 on the passing of this Act. 
 
 TABLE (B.) See Sect. 6. 
 Fees to he charged on an Examinatimi of Engineers. 
 
 For a first-class engmeer's certificate 
 For a second-class engineer's certificate 
 
 .£2 
 £1 
 
 TABLE C. Sect. 25. 
 
 Regulations for Preventing Collisions at Sea. 
 
 [By Order in Council of 14th August, 1879, other regulations are substituted 
 for these, see ante, p. 581, ct seq. See Order in Council in London Gazette of I7tli 
 September, 1880, as to regulations for preventing collisions at sea applying to 
 ships belonging to certain countries.] 
 
 I
 
 ' 26 & 27 VICT. c. 24 865 
 
 VICE ADMIRALTY COURTS ACT, 1863. 
 26 & 27 Vict. c. 24. (a) 
 
 An Act to facilitate the Appointment of Vice-Admirals and of Officers in Vice- 
 Admiralty Courts in Her Majesty's Possessions ahroad, and to confirm the past 
 Proceedings, to extend, the Jurisdiction, and to amend the Practice of those 
 Courts. [8th June, 1863.] 
 
 AVhereas it is expedient to facilitate the appointment of vice-admirals and of 
 officers in Vice Admiralty Courts in H. M.'s possessions abroad, and to confirni 
 the past proceedings, to extend the jurisdictloH, and to amend the practice of 
 those courts : Be it therefore enacted, &c., as follows: 
 
 1 . This Act may be cited for all purposes as the " Vice Admiralty Courts Act, Short title. 
 1863." 
 
 2. In the interpretation and for the purpose of this Act (if not inconsistent with interpretation 
 the context or subject matter) the following terms shall have the respective mean- of terras. 
 ings hereinafter assigned to them ; (that is to say,) 
 
 " Her Majesty" shall mean her Majesty, her heirs and successors : 
 
 The " Admiralty " shall mean the lord high admiral or the commissioners for 
 
 executing his office : 
 "British Possession" shall mean any colony, plantation, settlement, island, or 
 
 territory being a part of H. M.'s dominions, but not being within the limits of 
 
 the U. K. of Great Britain and Ireland, or of H. M.'s possessions in 
 
 India : 
 " Governor" shall mean the officer for the time being lawfully administering the 
 
 government of any British possession : 
 " Vice Admiralty Court " shall mean any of the existing Vice Admiralty Courts , 
 
 enumerated in the schedule marked (A.) hereto annexed, or any Vice Admiralty 
 
 Court which shall hereafter be established in any British possession : 
 " Ship" shall include every description of vessel used in navigation not propelled 
 
 by oars only, whether British or foreign : 
 " Cause" shall include any cause, suit, action, or other proceeding instituted iu 
 
 any Vice Admiralty Court. 
 
 3. In any British possession, where the office of vice admiral is now or shall at Appointment of 
 any time hereafter become vacant, the governor of such possession shall he ex officio "^ice admiral. 
 vice admiral thereof, until a notiticatiou is received in the possession that a formal 
 appointment to that office has been made by the Admiralty in the manner herein- 
 after mentioned. 
 
 4. In any British possession, where the office of judge of a Vice Admiralty Court Appointment of 
 is now or shall at any time hereafter become vacant, the chief justice, or the prin- " 
 
 cipal judicial officer of such possession, or the person for the time being lawfully 
 authorized to act as such, shall be ex officio judge of the Vice Admiralty Court, 
 until a notification is received in the possession that a formal appointment to that 
 office has been made by the Admiralty in the manner hereinafter mentioned. 
 
 5. In any British possession, where the office of registrar or marshal of any Vice Appointment of 
 Admiralty Court is now or shall at any time hereafter become vacant, the judge registrar and 
 of the Court may, with the approval of the governor, appoint some person to the ^^^^ ^ ' 
 vacant office, until a notification is received in the possession that a formal appoint- 
 ment thereto has been made by the Admiralty in the manner hereinafter men- 
 tioned, and may, for good and reasonable cause, to be approved by the governor, 
 
 remove the person so appointed. The judge may also appoint some person 
 to act as registrar or marslial during the temporary absence of either of those 
 officers. 
 
 (a) Sec BO & 31 Yict. c. 4S, 
 3 K
 
 866 
 
 VICE ADMIEALTY COUETS ACT, 1863, 
 
 Names of 
 appointees 
 TO be 
 to the 
 Government 
 
 Saving the 
 powers of the 
 Admiralty. 
 
 Past proceed- 
 ings confirmed, 
 
 Protection of 
 officers. 
 
 Jurisdiction of 
 Vice Admiralty 
 Courts. 
 
 6. On any vacancy in the office of judge, registrar, or marshal of any Vice Admi- 
 ntees, &c., j,r^ity Court, the governor of the British possession in which the court is established 
 fnome shall, as soon as 'is practicable, communicate to one of H. M.'s principal secretaries 
 
 of state the fact of the vacancy, and the name of the person succeeding or appointed 
 to the vacant office. 
 
 7. ISTothing in tlus Act contained shall be taken to affect the power of the Admi- 
 ralty to appoint any vice admiral, or any judge, registrar, marshal, or other officer 
 of any Vice Admii'alty Court, as heretofore, by warrant from the Admiralty, and 
 b}' letters patent issued under seal of the High Court of Admiralty of England. 
 
 8. No Act done by any person in the capacity of judge, registrar, or marshal of 
 anv Vice Admii-alty' Coiul, which shall not have been set aside by any competent 
 authority before the passing of tliis Act, shall be held invalid by reason that such 
 person had not been duly appointed, but all such Acts shall be as valid and effectual 
 as if done by a person duly appointed. 
 
 9. No action, prosecution, or other proceeding shall be brought against any such 
 person by reason of the illegality or informality of any Act hereby declared to be 
 valid and effectual. 
 
 10. The matters in respect of wliich the Vice Admiralty Courts shall have juris- 
 diction are as follows : 
 
 (1.) Claims for seamen's wages : 
 
 (2.) Claims for master's wages, and for his disbui'sements on account of the 
 
 sliip : 
 (3.) Claims in respect of pUotage : 
 
 (4.) Claims in respect of salvage of any ship, or of Hfe or goods therefrom : 
 (5.) Claims in respect of towage : 
 (6.) Claims for damage done by any ship : 
 (7.) Claims in respect of bottomry or respondentia bonds : 
 (8.) Claims in respect of any mortgage where the ship has been sold by a decree 
 
 of the Vice Admiralty Court, and the proceeds are under its control : 
 (9.) Claims between the owners of any ship registered in the possession, in 
 
 which the court is established, touching the O'wnership, possession, 
 
 emplojTnent, or earnings of such ship : 
 (10.) Claims for necessaries supplied, in the possession in which the court is 
 
 established, to any ship of which no owner or part o-\\Tier is domiciled 
 
 within the possession at the time of the necessaries being supplied : 
 (11.) Claims in respect of the building, equipping, or repairing Arithin any 
 
 British possession of any ship of which no owner or part opner is 
 
 domiciled within the possession at the time of the work being done 
 
 11. The Vice Admiralty Courts shall also have jurisdiction — 
 (1.) In all cases of breach of the regulations ancl instructions relating to H. M.'s 
 
 riixvy at sea : 
 (2.) In all matters arising out of droits of admiralty. 
 . _ . . 12. Nothing contained in this Act shall be construed to take away or restrict 
 
 fii^dictfra^*"^^ ^^^ jurisdiction conferred upon any Vice Admii'alty Court by any Act of Parlia- 
 ment in respect of seizures for breach of the revenue, customs, trade, or navigation 
 laws, or of the laws relating to the abolition of the slave trade, or to the capture 
 and destruction of pu-ates ancl piratical vessels, or any other jurisdiction now 
 lawfully exercised by any such court ; or any jurisdiction now laAS-fully exercised 
 by any other court within H. M.'s dominions, 
 ^rism^beyomi ^^' "^^^ jurisdiction of the Vice Admiralty Courts, except where it is expressly 
 limits of colony, confined by this Act to matters arising -ft-ithin the possession in which tlie coiu't is 
 establishecl, may be exercised, whether the cause or right of action has arisen 
 within or beyond the limits of such possession. 
 H.M. empowered 14. H. M. may, b}' Order in Council, from time to time establish rules touching 
 ^tlr nuefand^ *^^ practice to be observed in the Vice Admiralty Courts, as also tables of the 
 tables of fees, fees to be taken by the officers and practitioners thereof for all acts to be done 
 therein, and may repeal and alter the existing and all future rules and tables of 
 fees, and establish new rules and tables of fees in addition thereto, or in lieu 
 thereof. 
 Rules and tables 15. A copy of any rules or tables of fees which may at any time be established 
 be/ore t\ie House ^^^^ .^^ ^^^^ before the House of Commons within 3 months from the 
 of Commons. establishing thereof, or if parliament sliall not be then .sitting, or if the session 
 
 Jurisdiction of 
 Vice Admiralty 
 Courts. 
 
 Nothing to
 
 26 & 27 VICT. c. 24. 867 
 
 shall terminate within one month from that date, then within one month after the 
 commencement of the next seesion. 
 
 16. The rules and tables of fees in force in any Vice Admiralty Court shall, as To^^^e ™t|red in 
 soon as possible after tliey have been received in the British possession in which the courtsf ° 
 the court is established, be entered by the registrar in the public books or records 
 
 of the court, and the books or records in wliich they are so entered shall at all 
 reasonable times be open to tlie inspection of the practitioners and suitors in the 
 court. 
 
 1 7. A copy of the rules and tables of fees in force in any Vice Admiralty Court To be hung up in 
 shall be kept constantly hungup in some conspicuous place as well in the court as '^°^^^'^' ^'^■ 
 
 in the office of the registrar. 
 
 18. The fees estabhshed for any Vice Admiralty Court shall, after the date fixed f^ b^e^Jj^'g q'^/^*'^ 
 for them to come into operation, be the only fees wliich shall be taken by the fees taken. 
 officers and practitioners of the court. 
 
 19. Any person who shall feel himself aggrieved by the charges of any of the Taxation may bo 
 practitioners in any Vice Admu-alty Court, or by the taxation thereof by the H-^?''co'''^-t''f 
 officers of the court, may apply to the High Court of Admiralty of England to Adaiiraity. 
 have the charges taxed, or the taxation thereof revised. 
 
 20. The registrar of any Vice Admiralty Court shall have power to administer Registrar may 
 oaths in relation to any matter depending in the court ; and any person who shall oaths?'^ ^^ 
 wilfully swear falsely in any proceeding l^efore the registrar, or before any other 
 
 person authorized to administer oaths in the court, shall be deemed guilty of 
 j)erjury, and shall be liable to all the penalties attacliing to wilful and corrupt 
 perjury. 
 
 21. If a cause of damage by collision be instituted in any Vice Admiralty Court, As to the hearing 
 and the defendant institute a cross cause in respect of the same collision, the ^^ *^'"°'*^ causes, 
 judge may, on application of either party, direct both causes to be heard at the 
 
 same time and on the same evidence ; and if tlie ship of the defendant in one of 
 the causes has been arrested, or security given by him to answer judgment, but 
 the ship of the defendant in the other cause cannot be arrested, and security has 
 not been given to answer judgment therein, the court may, if it think fit, suspend 
 the proceedings in the former cause until security has been given to answer judg- 
 ment in the latter cause. 
 
 22. The appeal from a decree or order of a Vice Admiralty Court lies to H. M. ^o appeal save 
 in council ; but no appeal shall be allowed, save by permission of the judge, from ^ence or order." 
 any decree or order not having the force or efi'ect of a definitive sentence or final 
 
 order. 
 
 23. The time for appealing from any decree or order of a Vice Admiralty Court Appeal to be 
 shall, notwithstanding any existing enactment to the contrary, be limited to 6 "lontiiT^^'^'" ^ 
 months fi'om the date of the decree or order appealed from ; and no appeal shall 
 
 be allowed where the petition of appeal to H. M. shall not have been lodged in 
 the registry of the High Court of Admiralty and of Appeals within that time, 
 unless H. M. in council shall, on the report and recommendation of the judicial 
 committee of the privy council, be pleased to allow the apjDcal to be prosecuted, 
 notNvithstanding that the petition appeal has not been lodged within the time 
 prescribed. 
 
 24. The Acts enumerated in the schedule hereto annexed marked (B.) are hereby ^cts repealed, 
 repealed, to the extent therein mentioned, but the repeal thereof shall not aftect Saving rules ' 
 the validity of any rules, orders, regulations, or tables of fees heretofore established i,Qder'?&*^3 w 
 and now in force, in pursuance of the Act 2 & 3 Will. 4, c. 51 ; but such rules, 4, c. 51. 
 orders, regulations, and tables of fees shall continue in force until repealed or 
 
 altered under the provisions of this Act. 
 
 3 K 2
 
 86S 
 
 VICE ADMIBALTI COURTS ACT, 1863. 
 
 SCHEDULE A. 
 
 List of the existing Vice Admiralty Cmirts to which this Act npiplies. 
 
 Antigua. 
 
 Bahamas. 
 
 Barbae! oes. 
 
 Bermuda. 
 
 British Columbia. 
 
 British Guiana. 
 
 British Honduras. 
 
 Cape of Good Hope. 
 
 Ceylon. 
 
 Dominica. 
 
 Falkland Islands. 
 
 Gambia River. 
 
 Gibraltar. 
 
 Gold Coast. 
 
 Grenada. 
 
 Hong Kong. 
 
 Jamaica. 
 
 Labuan. 
 
 Lagos. 
 
 Lower Canada, otherwise Quebec. 
 
 Malta. 
 
 Mauritius. 
 
 Montserrat. 
 
 Natal. 
 
 Nevis. 
 
 New Brunswick. 
 
 Newfoundland. 
 
 New South Wales. 
 
 New Zealand. 
 
 Nova Scotia, otherwise Halifax. 
 
 Prince Edward Island. 
 
 Queensland. 
 
 Saint Christopher. 
 
 Saint Helena. 
 
 Saint Lucia. 
 
 Saint Vincent. 
 
 Sierra Leone. 
 
 South Australia. 
 
 Tasmania, formerly called Van Diem en's 
 
 Land. 
 Tobago. 
 Trinidad. 
 
 Vancouver's Island. 
 Victoria. 
 
 Virgin Islands, otherwise Tortola, 
 Western Australia, 
 
 THE FOLLOWING IS FROM SCHEDULE B. WHICH ALSO SETS OUT 
 THE TITLES OF THE ACTS REFERRED TO. 
 
 Acts and Parts of Acts Repealed. 
 
 Reference to Act. 
 
 Extent of Repeal. 
 
 56 Geo. III. c. 82. 
 
 The whole Act, save as regards H. M.'s 
 possessions in India. 
 
 5 Geo. IV. c. 113. 
 
 Section 29, save as above. 
 
 2 & 3 Will. IV. c. 51 
 
 The whole Act, save as above. 
 
 6 & 7 Vict. c. 38. 
 
 Section 11, so far as it relates to appeals 
 from Vice Admiralty Courts, save as 
 above. 
 
 17 & 18 Vict. c. 37 
 
 The whole Act.
 
 26 & 27 VICT. c. 51. 869 
 
 THE PASSENGERS ACT AMENDMENT ACT, 1863. 
 
 26 & 27 Vict. c. 51. 
 
 An Act to amend the Passengers Act, 1855. 
 
 [13th July, 1863.] 
 
 Whereas it is expedient to amend " The Passengers Act, 1855," in the particulars is &19 vict. 
 herein-after mentioned : Be it therefore enacted, &c., as follows : ^- •^•^^• 
 
 1. This Act may be cited for all purposes as " The Passengers Act Amendment Short title. 
 Act, 1863." 
 
 2. This Act shall come into operation on the 1st day of October, 1863 " (a). Commencement 
 
 3. The definition in the 3rd section of "The Passengers Act, 1855," of the ^^j^ ^^'^'j^^^ ^^ 
 term " Passenger Ship," is hereby repealed, and (a) for the purposes of the said '• Passenger 
 Act, and of this Act the term " Passenger Ship " shall signify every description of ship." in section 
 sea-going vessel, whether British or foreign, carrying, upon any voyage to which repealed' "^and ^^ 
 the provisions of the said "Passenger's Act, 1855," shall extend, more than 50 other provisions 
 passengers, or a greater number of passengers than in tlie proportion of one statute ^'^'^^^ 
 
 adult to every 33 tons of the registered tonnage of such ships, if propelled by 
 sails, or more than one statute adult to every 20 tons, if propelled by steam. 
 
 4. So much of the 4th section of the said " Passengers Act, 1855," as exempts Mail steamers 
 from the operation of the Act any steam vessel carrying mails under contract with carrying other 
 the government of the state or colony to which such vessel may belong, is hereby passengers to be 
 repealed, and (a) every steam vessel, whether British, foreign, or colonial, which shall subject to this 
 carry passengers other than cabin passengers in sufficient number to bring such ^'^^' 
 
 vessel within the definition of a passenger ship, as set forth in the 3rd section of 
 this Act, shall be subject to the provisions of the said Act and of this Act in like 
 manner as any passenger ship not carrying a mail. 
 
 5. The 1st rule of the 14th section of the said " Passengers Act, 1855," which Repeal of ton- 
 limits the number of persons to be carried in a passenger ship by her registered nage check on 
 tonnage, together -with so much of the concluding portion of the same section as sengers t°o be^' 
 relates to such rule, is hereby repealed, except so far as relates to any penalty cari-ied in a 
 incurred or legal proceedings taken thereunder (a). passenger ship. 
 
 6. In the passenger lists required by the 16th & 17tli sections of the " Passengers Cabin pas- 
 Act, 1855," to be delivered by the master of every ship before demaiuling a ciucfed'in^pas-^'^" 
 clearance, there shall be set forth, in addition to the other particulars required by senger lists. 
 
 " The Passengers Act, 1855," the names of all cabin passengers on board such 
 ships, specifying whether they respectively are under or over 12 years of age, and 
 at what place the passengers and cabin passengers respectively are to be landed, 
 and the schedule B. to the said Act shall be altered accordingly. 
 
 7. The limit of the penalty imposed by the 18tli section of the said " Passengers Limit of penalty 
 Act, 1855," on persons convicted of getting on board any passenger ship with extendefi^tom 
 intent to obtain a passage therein without the consent of the owner, charterer, or £5 to £20. 
 master thereof, and on persons aiding or abetting in sixch fraudulent attemjjt, 
 
 shall be extended from £o to ^20. 
 
 8. Notwithstanding the prohibition contained in the 29th section of the Horses and 
 
 said "Passengers Act, 1855," horses and cattle may be carried as cargo in canled^ii'/pas- 
 
 passenger ships, subject to the following conditions : senger ships, 
 
 (1.) That the animals be not carried on any deck below the deck on -which "°'*'?''°°"^iti""s 
 ^ ^ Till • ii-i'i herem named, 
 
 passengers are bertlied, nor in any compartment m which passengers are 
 
 berthed, nor in any adjoining compartment, except in a ship built of iron, 
 
 and of which the compartments are divided off by water-tight bulkheads 
 
 extending to the upper deck : 
 
 (2). That clear space on the spar or weather deck be left for the use and 
 
 exercise of the passengers, at the rate of at least 10 superficial feet for 
 
 each statute adult : 
 
 (a) Sec Statute Law llcvisiun Aci, 187D.
 
 870 
 
 PASSENGBES ACT AMENDMENT ACT, 1863, 
 
 Definition of the 
 tenn " large 
 cattle." 
 
 Dogs and pigs. 
 
 Issue of lime 
 jiiice. 
 
 Substitution of 
 ■soft brearl for 
 other bread 
 stuffs. 
 
 Section 46. of 
 recited Act to 
 a|)ply to cabin 
 passengers, and 
 passage money 
 made recover- 
 able imme- 
 diately on re- 
 landing. 
 
 Sections 12, 51, 
 63, and 64, of re- 
 cited Act 
 repealed and 
 other provisions 
 substituted (a). 
 
 Forfeiture of 
 hhin it master 
 proceeds to sea 
 ■without certiti- 
 cate of clear- 
 ance, Sec. 
 
 Such ship to be 
 dealt ^\■ith as if 
 seized under 
 custom laws. 
 
 Power to secre- 
 tary of state to 
 release ships on 
 payment of a 
 Bum of monej-. 
 
 (3.) That no greater nimiber of passengers be carried than in the proportion of 
 15 to every 100 tons of the ship's registered tonnage : 
 
 (4.) That in passenger ships of less than 500 tons registered tonnage not more 
 than two head of large cattle be carried, nor in passenger ships of larger 
 tonnage more than one additional head of such cattle for every additional 
 200 tons of the ship's registered tonnage, nor more in all in any passenger 
 ship than 10 head of sncli cattle : The term " Large Cattle " shall inclnde 
 both sexes of horned cattle, deer, horses, and asses : 4 sheep of either 
 sex, or 4 female goats, shall be ecpiivalent to, and may, subject to the 
 same conditions be carried in lien of one head of large cattle : 
 
 (5.) That proper arrangements be made, to the satisfaction of the emigration 
 officer at the port of clearance, for the housing, maintenance, and cleanli- 
 ness of the animals, and for the stowage of their fodder ; 
 
 (6.) Not more than 6 dogs, and no pigs or male goats, shall be conveyed as 
 cargo in any passenger ship : For any breach of this prohibition, or of 
 any of the above conditions, the owner, charterer, and master of the ship, 
 or any of them, shall be liable for each offence to a penalty not exceeding 
 £300 nor less than £5. 
 
 9. The reqttirements of the 35th section of the said " Passengers Act, 1855," 
 that 6 onnces of lime jnice should be issued n^eekly to each statute adult on 
 voyages exceeding 84 days in dtiration for sailing vessels, or 50 days for steamers, 
 shall be contined to the period when the ship shall be within the tropics ; during 
 the other portions of the voyage the issue of lime juice shall be at the discretion 
 of the medical jiractitioner on board ; or, if there be no such practitioner on board, 
 at the discretion of tlie master of tlie ship. 
 
 10. In addition to the substitutions in the dietary scales specified in the 35th 
 section of the said " Passenger's Act, 1855," soft bread baked on board may be 
 issued, at the option ot the master of any passenger ship, in lieu of the following 
 articles, and in the following proportions ; (that is to say,) one pound and a cpiarter 
 of a pound of such soft bread may be issued in lien of one pottnd of flour, or of 
 one pound of biscuit, or of one pound and a quarter of a pound of oatmeal, or of 
 one pound of rice, or of one pottnd of peas. 
 
 11. The 46th section of the said "Passengers Act, 1855," shall be applicable to 
 cabin as well as to other passengers landed on account of sickness : and the 
 passage money of all cabin or other passengers so landed may be recovered in the 
 manner pointed otit in the said Act, u]jon the delivery up of their contract tickets, 
 and notwithstanding that the ship may not have sailed : Provided always, that in 
 the case of cabin passengers so landecl one-half only of their passage money shall 
 be recoverable. 
 
 12. The 12th, 51st, 53rd, and 54th sections of the said "Passengers Act, 1855," 
 shall be and the same are hereby repealed, except as to the recovery and applica- 
 tion of any penalty for any offence committed against the said Act, and except so 
 far as may be necessary for supporting or continuing any proceeding heretofore 
 taken or hereafter to be taken thereundej- ; and in lieu of the enactments contained 
 in such sections the enactments in the 4 next following sections shall respectively 
 be substituted ; (that is to say), 
 
 13. If any passenger ship shall clear out or proceed to sea witliont the master 
 having first obtained such certificate of clearance, or witliout his having joined in 
 executing such liond to the crown as l)y the said " Passengers Act, 1855," are 
 required, or if such ship, after having put to sea, shall put into any port or place 
 in the U. K. in a damaged state, and shall leave or attempt to leave such port or 
 place Avith passengers on board without the master having first obtained such 
 certificate of clearance as is required by section 50 of the said " Passengers Act, 
 1855," such ship shall be forfeited to the use of H. M., and may be seized by any 
 olficer of customs, if found, within two years from the commission of the offence, 
 in any port or place in H. iM.'s dominions ; and such ship shall thereupon be 
 dealt with in the same manner as if she had been seized as forfeited for an offence 
 incurring forfeiture under any of the laws relating to the customs : ProAdded that 
 it shall be lawful for one of H. M.'s principal secretaries of state (6) to release, if 
 
 (a) See Statute Law Revision Act, 1875. 
 (')) The powers conferred by this sect, on one 
 of H. M.'s principal secretaries of state aretrans- 
 
 fen-ed to the Board of Trade by 35 & 36 Yict. 
 73, s. 7.
 
 26 & 27 VICT. 0. 51. 871 
 
 he shall think fit, any such forfeited ship from seizure and forfeiture, on payment 
 hy the owner, charterer, or master thereof, to the use of H. M., of such sum not 
 exceeding J2000, as such secretary of state may by any writing under his hand 
 specify. 
 
 14. If any passenger ship shall he wrecked, or otherwise rendered unfit to pro- in case of 
 cced on her intended voyage, while in any port of the U. K. , or after the com- ([amage'iti or 
 mencement of the voyage, and if the passengers, or any of them, shall be brought near u. K., pas- 
 back to the U. K., or if any passenger ship shall put into any port or place in the sengers to be 
 U. K. in a damaged state, the master, charterer, or owner shall, within 48 hours passage by some 
 thereafter, give to the nearest emigration officer, or in the al^sence of such officer otiier vessel, 
 
 to the chief officer of customs, a written undertaking to the following effect ; that lif tli™mcautimo. 
 is to say, if the ship shall have been wrecked, or rendered unfit as aforesaid to 
 proceed on her voyage, that the owner, charterer, or master thereof shall embark 
 and convey the passengers in some other eligible ship, to sail within 6 weeks from 
 the date thereof, to the port or place for which their passages respectively had been 
 previously taken ; and if the ship shall have put into port in a damaged state, then 
 that she shall be made seaworthy, and fit in all respects for her intended voyage, 
 and shall, within 6 weeks from the date of such undertaking, sail again with her 
 passengers; in either of the above cases the owner, charterer, or master shall, 
 until the passengers proceed on their voyage, either lodge and maintain them on 
 board in the same manner as if they were at sea, or pay to them subsistence money 
 after the rate of one shilling and sixpence a day for each statute adult, unless the 
 passengers shall be maintained in any hulk or establishment under the super- 
 intendence of the emigration commissioners (c) mentioned in the said Passengers 
 Act, 1855, in which case the subsistence money shall be paid to the emigration 
 officer at such port or place. If the substituted ship or damaged ship, as the case 
 may be, shall not sail within the time prescribed as aforesaid, or if default shall 
 be made in any of the requirements of this section, such passengers respectively, 
 or any emigration officer on their behalf, shall be entited to recover, by summary 
 process, as in the said Passengers Act, 1855, s. 46, is mentioned, all monies which 
 shall have been paid by or on account of such passengers or any of them for such 
 passage, from the i)arty to whom or on whose account the same may have been 
 paid, or from the owner, charterer, or master of such ship, or any of them, at the Power to rc-^ 
 option of such passenger or emigration officer : Provided that the said emigration from daruaged 
 officer may, if he shall think it necessary, direct that the passengers shall be ships; 
 removed from such damaged " Passenger Ship," at the expense of the master Penalty on 
 thereof ; and if after such direction any passenger shall refuse to leave such ship, f^sfng ^^'^^'^ ^^' 
 he shall be liable to a penalty not exceeding 40s., or to imprisonment not 
 exceeding one calendar month. 
 
 15. If any passenger or cabin passenger of any passenger ship shall, without any Governors or 
 neglect or default of his own, find himself within any colonial or foreign port or consuls may 
 place other than that for which the ship was originally bound, or at which he or seun-ers /f'tho 
 tlie emigration commissioners (c), or any public officer or other person on his master of the 
 behalf, may have contracted that he should land, it shall be lawful for the governor sbip fail to do so. 
 of such colony, or for any person authorized by him for the purpose, or for 
 
 H. M.'s consular officer at such foreign port or place, as the case may be, to 
 forward such passenger to his intended destination, unless the master of such ship 
 shall, within 48 hours of the arrival of such jmssenger, give to the governor or 
 consular officer, as the case may be, a Avritten undertaking to forward or carry on, 
 within 6 weeks thereafter, such passenger or cabin passenger to his original 
 destination, and unless such master shall accordingly forward, or carry him on 
 within that period. 
 
 16. All expenses incurred under the last preceding section or under the 52nd Expenses in-_ 
 section of " The Passengers Act, 1855," or either of them, by or by the authority the two pro- 
 of stich secretary of state, governor, or consular officer, or other pei-son, as cceding sections 
 therein respectively mentionecl, includmg the cost of maintaining the passengers [^ the^Ciwif"'^ 
 until forwarded to their destination, and of all necessary l^edding, provisions, and 
 
 stores, shall become a debt to H. M. and her successors from the owner, charterer, 
 and master of such ship, and shall be recoverable from them, or from any one or 
 
 (c) Now Board of Trade, 35 & 36 Vict. c. 73, .<.
 
 872 
 
 PASSENGERS ACT AMENDMENT ACT, 1863. 
 
 I'asseugcrs for- 
 warded by 
 governor, &c., 
 not entitled to 
 return of pas- 
 sage money. 
 
 Bond to repay 
 exiienses of 
 rescuing and 
 forwarding 
 shipwi-ecked 
 passengers, 
 w here (.>wners 
 and charterern 
 of vessel reside 
 abroad. 
 
 Recited Act and 
 tbis to be as 
 one. 
 
 more of them, at the suit and for the use of H. M., in like manner as in tlie case 
 of other crown debts ; and a certificate in tlie form in schedule (A.) hereto annexed, 
 or as near thereto as the circumstances of the case -will admit, purportmg to he 
 under the hand of any such secretary of state, governor, or consular officer (as the 
 case may be), stating the total amount of such expenses, shall in any suit or other 
 proceeding for the recovery of such debt be received in evidence without proof of 
 the handwriting or of the official character of such secretary of state, governor, or 
 consular officer, and shall be deemed sufficient evidence of the amount of such 
 expenses, and that the same were duly incurred, nor shall it be necessary to adduce 
 on behalf of H. M. any other e^idence in supj^ort of the claim, but judgment shall 
 pass for the crown, with costs of suit, unless the defendant shall si^ecially plead 
 and duly jDrove that such certificate is false or fraudulent, or shall specially plead 
 and prove any facts showing that such expenses were not duly incurred under 
 the provisions of this Act, and of the said " Passengers Act, 1855," or either of 
 them : Provided nevertheless, that in no case shall any larger sum be recovered 
 on account of such expenses than a sum ecjual to twice the total amount of passage 
 money received or due to and recoverable by or on account of tlie owner, charterer, 
 or master of such passenger ship, or any of them, for or in respect of the whole 
 number of passengers and cabin passengers who may have embarked in such ship, 
 wliich total amount of passage money shall be proved by the defendant, if he 
 will have the advantage of this limitation of the debt ; but if au}^ such passengers 
 are forwarded or conveyed to their intended destiuation under the provisions of 
 the last i)recediiig section, they shall not be entitled to the return of their passage 
 money, or to any comjiensation for loss of passage under the provisions of tlie said 
 '' Passengers Act, 1855." 
 
 17. In the case of a passenger ship, of Avhich neither the owners nor charterers 
 reside in the U. K., the bond required to be given to the crown by the 63rd 
 section of the " Passengers Act, 1855," sliall be lor the sum of ^5,000 instead of 
 .£2,000 ; and an additional condition shall be inserted in such bond to the effect 
 that the obligors therein shall, subject to the provisions and limitations herein- 
 before contained, be liable lor and shall jiay to H. M. and her successors, as a 
 crown debt, all expenses which may be incurred under tlie i^rovisions herein- 
 before and in the " Passengers Act, 1855," contained, in rescuing, maintaining, and 
 forwarding to their destiuation any jiassengers of such ships who by reason of 
 shipwreck or any other cause, except their own neglect or default, may not be 
 conveyed to their intended destination by or on behalf of the owner, charterer, or 
 master of such ship. 
 
 18. The said " Passengers Act, 1855," and this Act, shall be construed 
 together as one Act. 
 
 SCHEDULE (A.) 
 
 Form of Governors or Consul's Certificate of Expenditure in the Case of Passengers 
 
 sMpiorechcd^ d-c. 
 
 I hereby certify, That, acting under and in conformity with the provisions of 
 the British " Passengers Act, 1855," and of the " Passengers Act Amendment Act, 
 18(33," I have defrayed the expenses incurred in rescuing, maintaining, supplying 
 with necessary bedding, provisions, and stores (a), and in forwarding to {heir 
 destination passengers [including cabin passengers {b)], who were 
 
 proceeding from to in tlie passenger ship , which was 
 
 wrecked at sea, &c. (c). 
 
 And I further certify, for the purposes of the" lOtli (d) section of the said 
 
 (a) X.B.— 1. If more passcnccrs were rescued 
 than forwarded, or if beddlnar. &c., was not sup- 
 plied, alter the ccrtilieatc to suit the facts of the 
 car-e. 
 
 (h) X.B.— 2. Omit words in brackets when 
 neccssaiy. 
 
 (c) K.B.— 3. State generally the nature of llio 
 disaster and where it occurrea. But if the pas- 
 sengers were only left behind. ■v\ithout any de- 
 fault of their owni' state the fact accordingly. 
 
 ((') This should be the 16th.
 
 30 & 31 VICT. c. 15. 873 
 
 " Passengers Aniendment Act, 1863," that the total amount of such expenses is 
 pounds, and that such expenses were duly incurred by me under the said 
 Acts or one of them. 
 
 Given under my hand, this day of , 18 , 
 
 ( Governor of, dec, (or as 
 y the case may be), Her 
 j Britannic Majesty's 
 f Consul at 
 
 THE SHIPPING DUES EXEMPTION ACT, 1867. 
 
 30 & 31 Vict. c. 15. 
 
 An Act for the Abolition of certain Exemptions from Loccd Dues on. Shijjping, and on 
 Goods carried in Shi2)s. [12th April, 1867.] 
 
 Be it enacted, &c., as follows : 
 
 1. This Act may be cited for all purposes as "The Shipping Dues Exemption ,sii„rt title 
 Act, 1867." 
 
 2. This Act shall come into operation on the 1st of August, 1867, whicli time is Commcncemeut 
 herein referred to as the commencement of this Act. oi Act. 
 
 3. The following words and expressions shall in this Act have the meanings interpretation 
 liereby assigned to them, unless there is something in the context inconsistent of terms, 
 with sucli meanings ; that is to say. 
 
 The word "Dues" shall include all tolls, rates, taxes, duties, and imposts levied '-Dues." 
 on ships or on goods carried in ships, except any duties levied by the com- 
 missioners of customs for the use of H. M. 
 
 The expression "Exemption from Dues" shall, in addition to its ordinary >• Kxcmptiou 
 meaning, include every privilege of paying smaller dues than the public at ^^'"'"^ clues." 
 large pay under like circumstances. 
 
 4. After the commencement of this Act no exemption from dues shall be allowed ^'o exemption 
 in the U. K. on account of any one or more of the folloAving reasons ; that is ^\?^ ' j'?* u g- 
 to say, on account of 
 
 (1.) On account of any ship being registered at or Ijelonging to any particular named! 
 country, port, or place, or trading between any particular ports or 
 places : 
 
 (2.) On account of any ship or goods being the property of, or being consigned 
 by or to any particular person or body corporate : 
 
 (3.) On account of any goods being destined for sale in any particular town, 
 place, or market : 
 
 (4.) On account of any shi]i or goods being sent to or from, or anchoring or 
 mooring at, or being laden or unladen at anj' particular place in any port, 
 or in the neighbourhood of any port, except where a ship in going to or 
 from, or anchoring or mooring at, or being laden or unladen at such place 
 derives from the expenditure of the class of dues in question no benefit 
 or less benefit than ships going to or from, or anchoring or mooring at, 
 or being laden or unladen at another place in the same port : 
 
 (5.) On account of any goods being the product of or being destined for use at 
 any particular manufactory, place, or district, or any paiticular class of 
 manufactories : provided that nothing in this Act contained shall affect 
 any exemption from dues which has been granted by an Act of Parlia- 
 ment to the owner or occupier of some particular quay, manufactorv, or 
 place as compensation for obstruction to his Avater frontage or access to 
 his premises, or other injury caused to liim by the works authorized by 
 such Act.
 
 874 
 
 VICE-ADMIEALTT COUETS ACT AMENDMENT ACT, 1867, 
 
 5. This section relates to the compensation to he paid to privileged persons. 
 
 6. Repealed by Statute Law Revision Act, 1875. 
 
 7. 8 and 9. These sections relate to the^above-mentioned compensation. 
 
 If beneficial to 10. Where a receiver of dues in any port or place proves to the satisfaction of 
 the^trade of^tlie n^^g Board of Trade that it would be beneficial to the trade of such port or place 
 """^ t -^ ' '"-= ^^^^^ ^j^^ ^^^^^ ^j. ^^^^^ fi-oni which the exemption exists should be al^olished, the 
 Board of Trade may make an order directing the abolition of that class of dues 
 after the date mentioned in the order, and after such date, or, if no date is men- 
 tioned, after the date of that order, no dues specified in such order shall be levied, 
 and no compensation shall be payable in respect of any exemption therefrom ; 
 provided that where such dues are received in trust for a body corporate, such dues 
 shall not be abolished without the consent of such body corporate under their 
 common seal. 
 
 11. Nothing in this Act contained shall render liable any ships or goods Avliich 
 belong to or are in the service of H. M., or any corporation having the superin- 
 tendence or management of lighthouses, to any dues to which they would not be 
 liable if this Act had not passed. 
 
 port, the dues 
 may be 
 abolished in' 
 stead of the 
 exemption. 
 
 Saving of viarlits 
 of H. M. ami 
 lightlKUisc 
 authorities. 
 
 THE VICE-ADMIRALTY COURTS ACT AMENDMENT ACT, 1867. 
 30 & 31 Vict. c. 45. 
 
 Short title. 
 
 26 & 27 Vict. 
 c. 24, applied. 
 Iiiteipretation 
 of Terms. 
 
 Tenure of office 
 of vice-admiral. 
 
 Judge may 
 appoint deputy 
 judges. 
 
 Judicial powers 
 of deputy 
 judges. 
 
 An Act to extend and amend the Vice-Admiralty Courts Act, 1863. 
 
 [15th July, 1867.] 
 
 Be it enacted, &c., as follows : 
 
 1. This Act may be cited for all purposes as " The Vice- Admiralty Courts Act 
 Amendment Act, 1867. 
 
 2. This Act shall be read as one Act with the Vice-Admiralty Courts Act, 1863. 
 
 3. In the interpretation and for the purposes of this Act (if not inconsistent 
 with the context or sitbject matter) the followT.ng terms shall have the respectiA^e 
 meanings hereinafter assigned to them ; that is to say, 
 
 "Judge" shall mean the person lawfully appointed by the Admiralty to be 
 judge of any Vice-Admiralty Court, or, in default of such appointment, the 
 chief justice or principal jitdicial officer, or the person for the time being law- 
 fully authorized to act as the chief justice or principal judicial officer in the 
 British possession in wliich such court is established : 
 
 "Jitdicial Powers" shall mean all powers and authorities which may be lawfully 
 exercised by, and all duties by law imposed upon, any such judge in the trial, 
 hearing, or progress of any cause : 
 
 " Ministerial Powers" shall mean all powers and authorities which may be law- 
 fully exercised by, and all duties by law imposed uj)on, any such judge, not 
 included rmder the term " Judicial PoAvers :" 
 
 " Sit" or " Sitting" shall mean sit or sitting for the exercise of judicial powers, 
 whether in court or in chambers. 
 
 4. On the governor of any British possession, who is also vice-admiral thereof 
 vacating the office of governor of such possession, the office of vice-admiral of the 
 same possession shall thereupon be deemed to be also vacant witliin the meaning 
 of the 3rd section of the Vice -Admiralty Courts Act, 1863. 
 
 5. The judge of any Vice-Admii-alty Court may from time to time, with the 
 approval in writing of the governor of the British possession in which the cotirt is 
 established, appoint one or more deputy judge or judges to assist or represent him 
 in the execution of liis judicial powers. 
 
 6. It shall be lawful for any such dejjuty judge to exercise aU the judicial 
 powers of the judge ; and all acts done by such deputy judge shall be as valid and 
 effectual, to all intents and purjsoses, as if they had been done by the judge ; and
 
 30 & 31 VICT. c. 45. 875 
 
 all orders or decrees made by such deputy judge shall be subject to the same right 
 of appeal in all respects as if they had been made by the judge. 
 
 7. Any deputy judge may sit at the principal seat of government or elsewhere Deputy judges 
 in the possession at the same time that the judge or any other deputy judge is ]f^^^i^'_ "'^l'*'" 
 sitting, and either at the same or at any other place in such possession, and 
 
 ■whether the judge is or is not at that time within the possession. 
 
 8. The judge inay, if he thinks iit, require any such deputy judge or judges to Judge may sit 
 sit with him in the same court, and in such case the decision of the majority, or, j^^'^gggf^'"^^ 
 if they are equally divided in opinion, the decision of the judge, shall lie the 
 
 decision of the court ; and such decision shall be subject to the same right of 
 appeal in all respects as if it had been made by the judge alone. 
 
 9. The judge may direct at what place and time any sucli deputy judge shall Judge to i-egu- 
 sit, and what causes shall be heard before liim, and generally make such arra,nge- ceedhigsf ^'°' 
 ments as to him shall seem proper as to the division and despatch of the business 
 
 of the court. 
 
 10. The judge may, if he thinks fit, with the approval in writing of the Tenure of offlco 
 governor, at any time revoke the appointment of any such deputy -judge or judges, ?uJg(}s"^*^ 
 but the appointment shall not be determined by the occurrence of a vacancy in 
 
 the ottice of the judge. 
 
 11. The judge may, if he thinks fit, from time to time delegate all or any of his Judge may 
 ministerial powers to any such deputy -judge or judges. to^fal'power"^" 
 
 12. The judge may from time to time, if he thinks fit, appoint any competent j^,^{gg ^^^^ .'^p, 
 persons to act respectively as deputy-registrars and deputy-marshals of the court, point deputy 
 and may, if he thinks fit, at any time revoke any such appointment, but the Jj^fj^jJ!^!^'* ^^^ 
 appointment shall not be determined by the occurrence of a vacancy in the office 
 
 of the judge. 
 
 13. Notwithstanding anything contained in this Act, it shall be laAvful for the Admiralty may 
 Admiralty, if they think fit, at any time to revoke the appointment of any deputy- Jj^g,^fg° '^'Pouit- 
 judge, deputy-registrar or deputy-marshal appointed under this Act. 
 
 14. Any deputy-judge, deputy-registrar, or deputy-marshal, appointed under Deputies to 
 this Act, shall be entitled to the same fees in respect of any duty performed by I'^ceivc fees. 
 him as would be lawfully payable to the judge, registrar, or marshal respectively 
 
 for the performance of the same duty. 
 
 15. All persons entitled to practise as advocates, barristers-at-law, proctors, Barrlstei's and 
 attorney s-at-law, or solicitors in the superior courts of a British possession, shall Pitied tmn-actise 
 be entitled to practise in the same respective capacities in the Vice-Admiralty in vice-Admi- 
 Court or Courts of such possession, and shall have therein all the rights and I'alty courts, 
 privileges respectivelj^ belonging to advocates, liarristers-at-law, proctors, attorneys- 
 
 at-law, and solicitors, and shall in like manner be subject to the authority of the 
 person for the time being lawfully exercising the office of judge of such court. 
 
 16. It shall be lawful for H. M. to empower the Admiralty, by commission ii. M. may esta- 
 nnder the great seal, to establish one or more Vice- Admiralty Courts m any aJi^^i,'!;i,7v*court 
 British possession, notwithstanding that such possession may have previously In a possession 
 acquired independent legislative powers ; and the jurisdiction and authority of all having legisia- 
 the existing Vice- Admiralty Courts are hereby cleclared to be confirmed, to all ^'^'^l'"'"^^'" 
 intents and purposes, notwithstanding that the i^ossession in wliich any such 
 
 court has been established may at the time of its establishment have been in 
 possession of legislative powers. 
 
 17. The Vice- Admiralty Courts Act, 1863, shall, together with this Act, apply Extended to tlie 
 to any Vice- Admiralty Court now established or hereafter to be established in the Straits Settie- 
 Straits Settlements. _ "'®"^'- 
 
 18. The limitation of the time allowed for appeals contained in the 23rd section jc & 27 Vict. 
 
 of the Vice- Admiralty Courts Act, 1863, sliall lie held to apply to all decrees or temtcd to^a fTcaia 
 orders pronounced in any A'"ice- Admiralty Court now established or hereafter to fi-om vifo'-adnii- 
 
 be established in any of H. M.'s possessions in India. niity courts iu 
 
 ■^ ^ Intiian pos- 
 
 sessions.
 
 876 M. s. ACT, 1867, 
 
 30 & 31 Vict. c. 124 
 
 An Act to amend, tlw Merchant Shipping Act, 1854. 
 
 [20tli August, 1867.1 
 
 Be it enacted, &c., as follows : 
 Short title. 1. This Act maybe cited as tlie Merchant Shipping Act, 1867, and shall be 
 
 construed with and as part of the JM. S. Act, 1854, hereinafter termed the 
 
 principal Act. 
 Commoucemcnt 2. This Act shall come into operation on the 1st day of January, 1868, but 
 of Act. shall not apply to any ship which belongs to the U. K. and is absent therefrom 
 
 at the time when this Act comes into oijeration until such ship has returned to 
 
 the U. K. («) 
 Sects. 224, 227, 3. The 224th, 227th, and 231st sections of the principal Act are hereby 
 nnd 231 of 17 & repealed, {a) 
 
 reijcaied?' '^*'^' '^' '^^^ following rules shall be observed with respect to medicines, medical 
 T i., „ „,. I,.,.,..,, stores, and anti-scorbutics ; (that is to say.) 
 
 Lime 01 leiUOU /-i \ mi t-> n mi i i n p . " '' . . , , it i i 
 
 juice and other (!•) ihe iJoard 01 trade shall irom time to time issue and cause to be published 
 ami-scorbutics scales (6) of medicines and medical stores suitable for different ships and 
 
 and kept on ^ Voyages, and shall also prepare or sanction a book or books containing 
 
 board certain instructions for dispensing the same : 
 
 '^^'P^* (2.) The owners of every ship navigating between the U. K. and any place 
 
 out of the same shall provide and cause to be kept on board such ship a 
 supply of medicines and medical stores in accordance with the scale 
 aj^propriate to the said ship, and also a copy of the said book or of one 
 of the said books containing instructions : 
 (3.) No lime or lemon juice shall he deemed fit and proper to be taken on board 
 any such ship, for the use of the crew or passengers thereof, unless the 
 same has been obtained from a bonded warehouse for and to be shipped 
 as stores ; and no lime or lemon juice shall be so obtained or delivered 
 from any warehouse as aforesaid unless the same is shown, by a certi- 
 ficate under the hand of an inspector appointed by the Board of Trade, 
 to be proper for use on board ship, such certificate to be given upon 
 inspection of a sample after deposit of the said lime or lemon juice in 
 the warehouse ; nor unless the same contains 15 per centum of proper 
 and palatable proof spirits, to be approved by such inspector, or by the 
 j)roper officer of customs, and to be added before or immediately after 
 the inspection thereof ; nor unless the same is packed in such bottles, at 
 such time and in such manner, and is labelled in such manner as the 
 commissioners of customs may dii-ect ; provided that when any such 
 liioe or lemon juice is deposited in any bonded warehouse, and has been 
 approved as aforesaid by the said inspector, the said spirits, or so much 
 of the said spirits as is necessary to make w]) 15 per centum, maybe 
 added in such warehouse without payment of any duty thereon ; and 
 when any spirit has been added to any lime or lemon juice, and the same 
 has been labelled as aforesaid, it shall be deposited in the warehouse for 
 delivery as ship's stores only, upon such terms and subject to such 
 regulations of the commissioners of customs as are applicable to the 
 delivery of ship's stores from the warehouse : 
 (4.) The master or owner of every such foreign-going ship (except those boimd 
 to European pons or to ports in the Mediterranean Sea, and also except 
 such ships or classes of ships bound to ports on the eastern coast of 
 America north of the 35th degree of north latitude, and to any islands 
 or places in the Atlantic Ocean north of the same limit, as the Board of 
 Trade may from time to time exempt from this enactment,) shall provide 
 and cause to be kept on board such ship a sufficient tpiantity of lime or 
 
 (a) .See Statute Law Revision Act, 1875. 
 
 (0) Scales of medicines, &c., have been issued Ijy the Board of Trade under this sectiuui
 
 30 & 81 vioT. 0. 124. 877 
 
 lemon juice from tlie warehovise duly labelled as aforesaid, such labels to 
 remain intact until 24 hours at least after such ship shall have left her 
 port of departure on her foreign voyage, or a sufficient quantity of such 
 other anti-scorbutics, if any, of such quality, and composed of such 
 materials, and packed and kept in such manner, as H. M, by order in 
 council may from time to time direct : 
 (5.) The master of every such ship as last aforpsaid shall serve or cause to be 
 served out the hme or lemon juice with sugar (such sugar to be in addi- 
 tion to any sugar required by the articles) or other such anti-scorbutics 
 as aforesaid to tlie crew so soon as they have been at sea for 10 days, and 
 during the remainder of the voyage, except dimng such time as they are 
 in harbour and are there supplied with fresh pro^dsions ; the lime or 
 lemon juice and sugar to be served out daily at the rate of an ounce each 
 per day to each member of the crew, and to be mixed with a due pro- 
 portion of water before being served out, or the other anti-scorbutics, if 
 any, at svich times and in such quantities as H. M. by order in council 
 may from time to time direct : 
 (6.) If at any time when such lime or lemon juice or anti-scorbutics is or are 
 so served out as aforesaid any seaman or apprentice refuses or neglects to 
 take the same, such neglect or refusal shall be entered in the official log 
 book in the manner provided by the 281st section of the principal Act, 
 and sliall be signed by the master and bj^ the mate or some other of the 
 crew, and also by the surgeon or medical practitioner on board, if any : 
 And if in any such ship as aforesaid such medicines, medical stores, book of 
 instructions, lime or lemon juice, sugar, or anti-scorbutics as are hereinbefore 
 required are not provided, packed, and kept on board as hereinbefore required, 
 the owner or master shall be deemed to be in fault, and shall for each default 
 incur a penalty not exceeding ^20, unless he can prove that the non-compliance 
 with the above provisions, or any of them, was not caused through any inatten- 
 tion, neglect, or wilful default on his part ; and if the lime or lemon juice and 
 sugar or other anti-scorbutics are not served oitt in the case and manner herein- 
 before directed, or if entry is not made in the official log in the case and manner 
 hereinbefore required, the master shall be deemed to be in fault, and shall for 
 each default incur a penalty not exceeding £5, unless he can prove that the non- 
 compliance with the above provisions, or any of them, did not ai'ise through any 
 neglect, omission, or wilful default on his part ; and if in any case it is proved that 
 some person other than the master or owner is in default in any case under this 
 section, then such other person shall be liable to a penalty not exceeding ^£20. 
 
 5. Any person who manufactures, sells, or keeps or offers for sale any such Penalty for 
 medicines or medical stores as aforesaid which are of bad quality shall for each ^''pHi'c^ij^ff&c 
 such offence incur a penalty not exceeding £20. of bad quality. 
 
 6. In any British possession out of the U. K. the governor or officer administer- Power to gover- 
 ing the government for the time being shall, subject to the laws of such pos- ""^?' '^°;; *? 
 session, have power to make regulations concerning the supply within such tions as t°o supply 
 possession of lime or lemon juice and anti-scorbutics for the use of ships ; and pf lime or lemou 
 any lime or lemon juice or anti-scorbutics duly supplied in accordance with any ^""^^' ^' 
 such regulations shall be deemed to be ht and proper for the use of ships. 
 
 7. Whenever it is shown that any seaman or apprentice who is ill has, through Seaman's ex- 
 the neglect of the master or owner, not been provided with proper food and water }]''"**?'? *" .*^"*'^^°^ 
 according to his agreement, or with such accommodation, medicines, medical neglect of owner 
 stores, or anti-scorbutics as are required by the principal Act or by this Act, then, or master to be 
 unless it can be shown that the ilhiess has been produced by other causes, the ^''"'^ ^^ them, 
 owner or master shall be liable to pay all expenses properly and necessarily 
 
 incurred by reason of such illness (not exceeding in the whole 3 months wages), 
 either by such seaman himself, or by H. M.'s Government, or any officer of 
 H. M.'s Government, or by any parochial or other local authoritv on his behalf, 
 and such expenses may be recovered in the same way as if they were wages duly 
 earned : provided that this enactment shall not operate so as to affect any further 
 lial)ility of any such owner or master for sucli neglect, or any remedy which any 
 seaman already possesses. 
 
 8. Where a seaman is by reason of illness incapable of ]ierforming his duty, and Forfeiture of 
 
 it is proved that such illness has been caused by liis own wilful act or default, he teaman wii'erf ill-
 
 878 M. s. ACT, 1867, 
 
 ness caused bv shall not be entitled to wages for t!ie time elurmg which lie is by reason of such 
 liis own default, illness incapable of performing his duty. 
 
 Place appro- 9. The following rules shall be observed with respect to accommodation on 
 
 EJln^ohavet W British sliips^ (that is to say,) 
 
 certaiu space for (1.) Everyplace in any ship occupied by seamen or apprentices, and appro- 
 each man. and priated to their use, shall have for every such seaman or apprentice a 
 cmlln-ucted^and space of not less than 72 cubic feet, and of not less than 12 superficial 
 kept clear. feet, measured on the deck or floor of such place : 
 
 (2.) Every such place shall be such as to make the space aforesaid available for 
 the proper accommodation of the men who are to occupy it, shall be 
 securely constructed, properly lighted and A^entilated, properly protected 
 from weather and sea, and as far as practicable properly shut otf and 
 protected from effluvium which may be caused by cargo or bilge water : 
 (3.) No such place as aforesaid shall be deemed to be such as to authorize a 
 deduction from registered tonnage, under the provisions hereinafter con- 
 tained, unless there is or are in the ship one or more properly constructed 
 privy or privies for the use of the crew ; .such privy or privies to be of 
 such number and of such construction as may be approved by the 
 surveyor hereinafter mentioned : 
 (4.) Every such place shall, whenever the ship is registered or re-registered, be 
 inspected by one of the surveyors appointed by the Board of Trade under 
 Part IV. of the principal Act, who shall, if satisfied that the same is in 
 all respects such as is required by this Act, give to the collector of 
 customs a certificate to that effect, and thereupon such space shall be 
 deducted from the register tonnage : 
 (5.) No such deduction from tonnage as aforesaid shall be authorized unless 
 there is permanently cut in a beam, and cut in or painted on or over the 
 doorway or hatchway of every such place, the number of men which it 
 is constructed to accommodate, with the words " certified to accommo- 
 date seamen " : 
 (6.) Every such place shall be kept free from stores or goods of any kind, not 
 
 being the personal property of the crew in use during the voyage : 
 (7.) Upon any complaint concerning any such place as aforesaid, one of the 
 surveyors appointed by the Board of Trade may inspect such place, and 
 if he finds that any of the provisions of this Act with respect to the same 
 are not complied A\dth he shall report the same to the collector of 
 customs at the port where the sliip is registered, and thereupon the 
 registered tonnage shall be altered, and the deduction aforesaid in respect 
 of space disallowed, unless and until it shall be certified by such sur- 
 veyor, or by some other surveyor appointed by the Board of Trade, that 
 the provisions oi the Act in respect of such place are fully complied 
 with : 
 (8.) If any such place in any ship is not kept free from goods and stores a.s 
 aforesaid, the master shall be deemed to be in fault, and shall for eveiy 
 such failure to comply with the provisions of this section forfeit 
 and pay to each seaman lodged in such place the sum of Is. a day for 
 each day after complaint made to him by any two or more of such 
 seamen during which auy goods or stores, not being the personal pro- 
 perty of the crew, are stored or kept therein : 
 (9.) If in any other respect the provisions of this section are not observed with 
 respect to any such place in any ship the owner shall be deemed to be in 
 fault, and shall for every foilure to comply with the provisions of this 
 section incui' a penalty not exceeding ^20. 
 Rules for jq^ The following rules shall be observed with respect to the medical inspection 
 
 inspection of of seamen ; that is to say, 
 
 seamen. (1.) At any port where there is a local marine board the local marine board, 
 
 and at other ports in the U. K. the Board of Trade, may appoint a 
 medical inspector of seamen : 
 (2.) Such medical inspector of seamen shall, on application by the owner or 
 master of any ship, examine any seaman applying for employment in 
 such ship, and shall give to the superintendent of the mercantile marine
 
 30 & 31 VICT. c. 124. 879 
 
 office a report under Ids hand stating whether such seaman is in a fit 
 state for duty at sea, and a copy of such report shall be given to the 
 master or owner of the sliip : 
 
 (3.) The master or owner applying for such inspection shall pay to the super- 
 intendent such fees as the Board of Trade dii-ect, and such fees shall he 
 paid into and form part of the mercantile marine fund. 
 
 (4.) The said medical inspectors shall he remunerated for their ser^dces as the 
 Board of Trade may direct, and such remuneration shall be paid out of 
 the mercantile marine fund. 
 
 (5.) In British possessions out of tlie U. K. the governor or other officer admi- 
 nistermg the government for the time being shall have the power of 
 ajjpointing medical inspectors of seamen, of charging fees for inspections, 
 when applied for, and of determinmg the remuneration to be paid to 
 such inspectors. 
 
 11. If any British subject commits any crime or offence on board any British Offences by 
 ship, or on board any foreign ship to which he does not belong, any court of Bntish subjects 
 justice in H. M.'s dominions, which would have had cognizance of such crime or ships, 
 offence if committed on board a British ship within the limits of the ordinary 
 jurisdiction of such court, shall have jurisdiction to hear and determine the case 
 
 as if the said crime or offence had been committed as last aforesaid. 
 
 12. The harbour master for the time being of the harbour of Holyhead, in the Harbour master 
 event of it seeming meet to H. M. to assign to him H. M.'s commission to act as it!^^ u^ l!^f,? 
 
 a justice 01 tlie peace witmn the linuts withm which he is empowered to act missioned as 
 in harbour matters, shall, during the continuance of such assignment and of justice. 
 his tenure of the office of harbour master, execute witliin such limits the duties 
 of a justice of the peace, notwithstanding he may not be qualified by estate 
 to be a justice of the peace for a county, and shall have within such limits the 
 same power and jurisdiction as a stipendiary magistrate has by act of par- 
 liament when sitting at a police court or other place appointed in that behalf. 
 
 THE COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868. 
 
 31 & 32 Vict. c. 71 («). 
 
 An Act for conferring Admiralty Jurisdiction on the Couniy Courts. 
 
 [31st July, 1868.] 
 
 Be it enacted, &c., as follows : 
 
 1. Tliis Act may be cited as The County Courts Admiralty Jurisdiction Act, siiort title. 
 1868. 
 
 2. If at any time after the passing of tliis Act it appears to H. M. in Appointment 
 council (b), on the representation of the lord chancellor, expeclient that any county of county 
 court should have admiralty jurisdiction, it shall be lawful for H. M., by order in ^ai'i'^jfuy 
 council, to appoint that court to have admiralty jurisdiction accordingly, and to purposes, 
 assign to that court as its district for admiralty purposes any part or parts of any 
 
 one or more district or districts of county courts ; and the district so constituted 
 for that court, with the parts of the sea (if any) adjacent to that district to a dis- 
 tance of 3 miles from the shore thereof, shall be deemed its district for 
 admiralty jiurposes ; and accordingly the judge and all officers of the court shall 
 have juriscliction and authority for those purposes throughout that district, as if 
 
 (n) Tlii3 Act is amended by 32 & 33 Vict. c. 61. {h) See order in council of lltli January, 18C9,
 
 880 
 
 COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868, 
 
 Extent of 
 Admiralty 
 Jurisdiction 
 of county 
 courts (o). 
 
 Restrictions 
 on county 
 court juris- 
 diction in cer- 
 tain cases. 
 
 No county 
 court otlier 
 than that 
 appointed 
 to have 
 jurisdiction. 
 
 As to trnnsfer 
 from county 
 court by order 
 of HiRli Cjurt 
 of Admiralty. 
 
 As to transfer 
 of causes by 
 order of county 
 court to High 
 Court of 
 Admiralty. 
 
 the same was the district of the court for all purposes ; and/from a time to he 
 specified in each such order, this Act shall have effect in and tln-oughout the dis- 
 trict so constituted ; and any such order may be from time to time varied as seems 
 expedient ; and a county court so appointed to have admiralty jurisdiction, and no 
 other county court, shall, for the purposes of this Act, be deemed a county court 
 having admiralty jurisdiction : provided that no judge of a county court, except 
 the judges of the London court, shall have jurisdiction in the city of London. 
 
 3." Any county court having admiralty jurisdiction shall have jurisdiction, and 
 all powers and authorities relating thereto, to try and determine, subject and 
 according to the jsrovisions of this Act, the following causes (in this Act referred to 
 as admiralty causes) : 
 
 (1.) As to any claim for salvage (h) — any cause in which the value of the pro- 
 perty saved does not exceed £'1,060 (c), or in which the amount claimed 
 does not exceed £300 : 
 (2.) As to any claim for towage, necessaries (d), or wages — any cause in which 
 
 the amount claimed does not exceed £150 : 
 (3.) As to any claim for damage to cargo, or damage by collision (e) — any cause 
 
 in which the amount claimed does not exceed £300 : 
 (4.) Any cause in respect of any such claim or claims as aforesaid, but in which 
 the value of the property saved or the amount claimed is beyond the 
 amount limited as above mentioned, when the parties agree liy a memo- 
 randum signed by them or by their attorneys or agents that any county 
 court having admiralty jurisdiction, and specified in the memorandum, 
 shall have jurisdiction. 
 
 4. Nothing in this Act, or in any order in council under it, shall confer on a 
 county court jurisdiction in any prize cause, or in any other matter within the 
 Naval Prize Act, 1864, or in any matter arising under any of the Acts for the sup- 
 pression of the slave trade, or any admiralty jurisdiction by way of appeal. 
 
 5. From and after the time specified in each order in council under this Act 
 appointing a county court to have admiralty jurisdiction within any district as 
 the time from which this Act shall have effect in and throughout that district, no 
 county court, other than the county court so appointed, shall have jurisdiction 
 within that district in any admiralty cause ; provided that all admiralty causes at 
 that time pending in any county court within that district may be continued as if 
 no such order in council had been made. 
 
 6. The High Coitrt of Admiralty of England, on motion by any party to an 
 admiralty cause pending in a county court, may, if it shall think fit, with previous 
 notice to the other party, transfer the cause to the High Court of Admiralty, and 
 may order security for costs, or impose such other terms as to the coiu't may 
 seem fit. 
 
 7. If during the progress of an admiralty cause in a county court it appears to 
 the court that the subject matter exceeds the limit in respect of amount of the 
 admiralty jurisdiction of the court, the validity of any order or decree theretofore 
 made by the court shall not be thereby affected, but (unless the parties agree, by 
 a memorandum signed by them or by their attorneys or agents, tliat the court 
 shall retain jurisdiction) the court shall by order transfer the cause to the High 
 Court of Admiralty ; but that court may, nevertheless, if the judge of that court 
 in any case thinks fit, order tliat the cause shall be prosecuted in the county court 
 in which it M"as commenced, and it shall be prosecuted accordingly. 
 
 (a) This section is amended by 32 5: 33 Tict. 
 c. SI. s. 4. po.«(. p. 886. 
 
 (6) This extends to the distribution of salvage 
 although there has been no original claim in the 
 county court for salvasie. The Gianmbanta, 
 46 L. J. Ad. 75 ; 2 L. R. Ad. 4.5. 
 
 (c) See the Herman Wedel, 39 L. J. Ad. 30, 
 ante. p. 540 ; the Express, 41 L. J. Ad. 32. 
 
 id) The county coun under this section cannot 
 entertain a claim for necessaries supplied either 
 to a vessel in her own port or when the owner is 
 domiciled in this country ; the Dou-se, ?,9 L. J. Ad. 
 46 ; 3 L. R. Ad. 135 ; the Elpis, 42 L. J. Ad. 43. a 
 claim on a bottomry bond. As to when an 
 objection to the jurisdiction of the county court 
 
 must be taken, see Ex parte Michael, 41 L. J. Q. B 
 349 ; L. R. 7 Q. B. 658. 
 
 (f ) See Flower v. Bradley, 44 L. J. Ex. 1. an 
 action against a pilot for collision damage. A 
 county court cannot try a question of collision en 
 a river between barges propelled by oars only : 
 Everard \. KendaU, 39 L. J. C. P. '234 : L. R. 5 
 C. P. 48. A county couit to which admiralty 
 jurisdiction is given by 31 & 32 Tict. c. 71, has 
 admiralty jurisdiction over a claim not exceeding 
 .-tSOo for damages for negligence causing a col- 
 lision between a barge of the defendant and a 
 ship of the plaintiff in a river within the body of 
 a county formit^g part of its district : Purkis v. 
 Flower, 43 L. J. q. B. 33.
 
 31 & 32 VICT. c. 71. 881 
 
 8. If during the progress of an admiralty cause in a county court it shall appear As to transfer 
 to the court that the cause could be more conveniently prosecuted in some other ofjfeTeountv 
 county court, or in the High Court of Admiralty of England, the court may by courts or 
 order transfer it to such other county court, or to the High Court of Admiralty of Court of 
 England, as the case may be, and the cause shall thenceforward be so prosecuted '"^ ^' 
 accordingly. 
 
 9. If any person shall take in the High Court of Admiralty of England or in Restrictions on 
 any superior court proceedings which he might, without agreement, have taken in R'''^'l';®'^'°°Y'* 
 a county court, except by order (/) of the judge of the High Court of Admiralty Admiralty or 
 or of such superior court or of a county court having admiralty jurisdiction, and superior court. 
 shall not recover a sum exceeding the amount to which the jurisdiction of the 
 
 county court in that admiralty cause is limited by this Act, and also if any person 
 without agreement shall, except by order as aforesaid, take proceedings as to 
 salvage in the High Court of Admiralty or in any superior court in respect of 
 property saved, the value of which when saved does not exceed £1,000, he shall 
 not be entitled to costs, and shall be liable to be condemned in costs, unless the 
 judge of the High Court of Admiralty or of a superior court before whom the 
 cause is tried or heard shall certify that it was a proper admiralty cause to be tried 
 in the High Court of Admiralty of England or in a superior court. 
 
 10. In an admiralty cause in a county court the cause shall be heard and de- Powers, &c., of 
 termined in like manner as ordinary civil causes are now heard and determined Judges and 
 
 in county courts ; save and except that in any admiralty cause of salvage, towage, 
 or collision the county court judge shall, if he think fit, or on the request of either 
 party to such cause, be assisted by two nautical assessors in the same way as the 
 judge of the High Coitrt of Admiralty is now assisted by nautical assessors. 
 
 11. In any such admiralty cause as last aforesaid it shall be laAvful for the Power to judge 
 judge of the county court, if he think fit, and he shall, upon recjuest of either °l sumnwn""' "^ 
 jjarty, summon to his assistance in such manner as general orders shall direct nautical asses- 
 two nautical assessors, and such nautical assessors shall attend and assist ^°i'? 5° "^^ 
 
 T , ' assistance, 
 
 accordingly. _ Decrees in 
 
 12. The decree of the county court in an admiralty cause shall be enforced county courts 
 against the person or persons summoned as the defendant or defendants in the caug'^"to^h/ve 
 same maimer as the decrees of the said court are enforced in ordinary civil causes, same force as 
 save and except as in this Act otherwise provided. ^^'^^^ ^^ '^^'^^^ 
 
 13. The judge of every county court having admiralty jurisdiction shall hear Admiralty 
 and determine admiralty causes at the usual courts held within his jurisdiction, causes to be 
 or at special courts to be held by him, and which he is hereby required to hold as cou^sf^ ^^ 
 soon as may be after he shall have had notice of an admiralty cause liaving arisen 
 
 •\vithin the jurisdiction of his court. 
 
 14. The registrar of each county court having admiralty jurisdiction shall from Appointment 
 time to time frame a list, to be approved by the judge of the High Court of coifnty^court.'^ 
 Admiralty before whom the same shall be laid by the county court judge, and 
 
 without whose approval it shall have no validity, of assessors, of persons of 
 nautical skill and experience residing or having places of business within the 
 district of the county court, to act as assessors in that court, and shall cause the 
 list to be published in the London Gazette. 
 
 15. Every person named in the list of assessors so framed and approved shall Attendance of 
 attend the county court under such circumstances, and in such rotation, and 
 
 subject to such regulations, and shall receive such fees for his attendance, as 
 general orders shall direct, and for every wilful non-attendance shall be liable, at 
 the discretion of the court, to a penalty not exceeding £5. 
 
 16. Every assessor named in such list shall hold bis office until a new list of Removal of 
 assessors shall have been framed and approved as aforesaid, or until he shall "^°®'^°^^" 
 resign his appointment. 
 
 17. The registrars of the county courts shall be remunerated for their duties in Remuneratioa 
 admiralty causes by receiving for their own use such fees as general orders shall ° legistxars. 
 direct. 
 
 18. A scale of costs and charges in admiralty causes in the county courts shall Scale of costs. 
 be prescribed by general orders, 
 
 (/ ) See the John Evavs, 43 L. .1. Ad. 9. 
 
 "> T
 
 882 
 
 COUNTY COUETS ADMIRALTY JURISDICTION ACT, 1868, 
 
 Power to 
 registrars to 
 administer oatbs 
 and take 
 e\idence. 
 
 Evidence before 
 registrar re- 
 ceivable in 
 Adniii-alty 
 Court. 
 
 As to proceed- 
 ings in county 
 court for coni- 
 mencement of 
 cause. 
 
 Limitation of 
 arrest. 
 
 Power to issua 
 process. 
 
 Registration of 
 decrees and 
 orders. 
 
 Concurrent 
 jurisdiction of 
 Ihe Court of 
 Passage. 
 
 19. The registrar of a county court sliall have power to administer oaths in 
 rehation to any admiralty cause in a county court ; aiid any person -who shall "wil- 
 fully depose or aftirm falsely before the registrar in any admiralty cause shall he 
 deemed to lie guilty of perjury, and shall be liable to all the pains and penalties 
 attaching to -n-ilful and corrupt jierjury. 
 
 20. Evidence taken in any admiralty cause before the registrar of a county 
 coitrt, as the judge of a county court or general orders shall direct, shall be re- 
 ceived as evidence in any other count)" court, saving all just exceptions ; and the 
 registrar of any county court shall, for the purpose of the examination of any 
 ■witnesses within the district of that coiu't, have all and the like powers and 
 authorities of an examiner of the High Court of Admiralty of England, and 
 evidence taken by him in that capacity shall be received as evidence in the High 
 Court of Admiralty of England, saving all just exceptions. 
 
 21. Proceedings in an admiralty cause shall be commenced — 
 
 (1.) In the coimty court having admiralty jurisdiction within the district of 
 wliich the vessel or property to which the cause relates is at the com- 
 mencement of the proceedings : 
 
 (2.) If the foregoing rule be not applicable, then in the county court having 
 admiralty jurisdiction in tlie (listrict of wdiich the owner of the vessel or 
 property to ^Yllich the cause relates, or Ms agent in England, resides, or 
 if such owner or agent does not reside within any such district, then in 
 the county court having admiralty jitrisdiction the district whereof is 
 nearest to the place where sitch owner or agent resides : 
 
 (3.) If for any reason the last foregoing rule is not applicable or cannot be acted 
 on, then in sttch county court having admiralty jurisdiction as general 
 orders direct : 
 
 (4.) In any case in the county court or one of the county courts having admi- 
 ralty jurisdiction in which the parties by a memorandimi, signed by 
 them or by their attorneys or agents, agree shall have jitrisdiction in the 
 cause. 
 
 22. In an admiralty cause in a county court if evidence be given to the satisfac- 
 tion of the judge, or in his absence the registrar of the court, that it is probable 
 that the vessel or property to which the cause relates will be removed out of the 
 jurisdiction of the court before the plaintiff's claim is satisfied, it shall be lawful 
 ibr the said judge, or in his absence for the registrar, to issue a warrant for the 
 arrest and cletention of the said vessel or property, unless or until bail to the 
 amount of the claim made in such caitse, and to the reasonable costs of the 
 plaiutiflf in such cause, be entered into and perfected, according to general orders, 
 by or on behalf of the owner of the vessel or property or his agent, or other the 
 defendant in such cause ; and, except as in this section exjjressly provided, there 
 shall be no arrest or detention of a vessel or property in an admiralty caxtse in a 
 county court otherwise than in execution. 
 
 23. For the execution of any decree or order of a county court in an admiralty 
 cause the court may order, and the registrar on sitch order may seal and issvie, and 
 any officer of any county cotu't may exectxte, process according to general orders ; 
 provided that where under such process a vessel or property would or might be 
 sold, then, if the owner of the vessel or property desires that the .sale should be 
 conducted in the High Court of Admiralty instead of in the county court, he shall 
 be entitled, on security for costs being first given, and subject and according to 
 such other provisions as general orders direct, to obtain an order of the county 
 court for transfer of the proceedings for sale, with or ^vithout (as the judge of the 
 county court thinks fit) tlie transfer of the subsequent proceedings in the cause, to 
 the High Court of Admiralty, which court shall have jurisdiction and all powers 
 and authorities relating thereto accordingly. 
 
 24. Such decrees and orders of county courts in admiralty causes as general 
 orders shall direct shall be registered with the registrar of county coiu-t judgments 
 in London in such manner as general orders shall direct. 
 
 25. The Court of Passage of the borough of Liverpool shall, upon an order in 
 council being made which shall appoint the county court of Lancashire holden at 
 Liverpool to have admii-alty jurisdiction, liave the like jimsdiction, powers, and 
 authorities as by that order are conferred on the said coimty court ; but nothing 
 herein shall be deemed to enlarge the area over wliich the jurisdiction of the
 
 01 & 32 VICT. c. 71. 883 
 
 Court of Passage extends, or to alter the rules and regulations for liolding the said 
 court, or to take away or restrict any jurisdiction, power, or authority already 
 vested in that court j and fees received in that court under this_ Act shall be 
 dealt with as fees received in that court under its ordinary jurisdiction. 
 
 26. An appeal may be made to the High Court of Admiralty of England from Appeal to 
 a final decree or order of a county court in any admiralty cause, and, by permission ^"^^^ji-aity. 
 of the judge of the county court, from any interlocutory decree or order therein, on 
 gecurity tor costs being first given, and subject to such other provisions as general 
 
 orders shall direct. 
 
 27. No appeal shall be allowed unless the instrument of appeal is lodged in the Time for appeal, 
 registry of the High Court of Admiralty within 10 days from the date of the 
 
 decree or order appealed from, but the judge of the High Court of Admiralty of 
 England may, on suflicient cause being shown to his satisfaction for such omission, 
 allow an appeal to be prosecuted, notwithstanding that the instrument of appeal 
 has not been lodged within that time. 
 
 28. No appeal shall be allowed if, before the decree or order is made, the par- Agreement not 
 ties shall Iiave agreed by a memorandum signed by them, or by their attorneys or *" appeai. 
 agents, that the decree or order shall be final ; and any such agreement need not 
 
 be stamped, except in respect of any fee imposed by general orders. 
 
 29. [Repealed by 38 & 39 Vict. c. 50, s. 12.] 
 
 30. On an appeal under this Act, when the appellant is unsuccessful, he shall Costs of appeal, 
 pay the costs of the appeal, unless the Appellate Court shall otherwise direct. 
 
 31. No appeal shall be allowed unless the amount decreed or ordered to be due No appeal 
 exceeds the sum of £50. _ "°^f ds^£eo'^°* 
 
 32. On an appeal under this Act, the judge of the High Court of Admiralty, if ^^'^^^ ^ ' 
 
 it appears to him expedient that any sale decreed or ordered to be made of the &c!! in^Co^urt^of' 
 vessel or jjroperty to which the cause relates sliould be conducted in the High Admiralty. 
 Court of Admiralty instead of in the county court from which the appeal is 
 brought, may direct the transfer of the proceedings for sale, with or without tlie 
 transfer of the subsequent proceedings in the cause, to the High Court of Admi- 
 ralty, which court shall have jurisdiction, and all powers and authorities relating 
 thereto accordingly. 
 
 33. In all cases which shall arise within the jurisdiction of the Cinque Ports as in certain cases 
 defined by the Act 1 & 2 Geo. 4, c. 76, s. 18, causes may be transferred by the transferred b^ 
 county court and appeals made to the Court of Admiralty of the Cinque Ports in county court ^ 
 lieu of the High Court of Admiralty ; and in the case of appeals the instrument and appeals 
 
 of appeal sliall be lodged in the registry of the Cinque Ports, and the same dis- JJf'''Admiraity' 
 cretion vested in the judge official and commissary of tlie said Cinque Ports Court of the Cinque 
 as is by this Act vested in the judge of the High Court of Admiralty. Ports. 
 
 34. This Act shall be read as one Act with so much of the County Courts Act, County court 
 1846, and the Acts amending or extending the same, as is now in force. tjfis^ ^^^^ '® " 
 
 35. General orders shall be from time to time made under this Act for the pur- practice, &c., 
 poses in this Act directed, and for regulating the practice and procedure of the ^o be regulated 
 admiralty jurisdiction of the county courts, the forms of processes and proceed- orders'.'^' '^ 
 ings therein or issuing therefrom, and the days and places of sittings for admiralty 
 
 causes, the duties of the judges and officers thereof, and the fees to.be taken 
 therein. 
 
 36. General orders under this Act shall be made by the Lord Chancellor, mth Authority for 
 the advice and assistance of the judge of the High Court of Admiralty of Eng- ^4ers^ ^^'^^^^^ 
 land, and, as far as they relate to fees, or to the receipt and expenditure of and 
 accounting for money, with the approval of the commissioners of H. M.'s 
 Treasury.
 
 881 
 
 THE MERCHANT SHIPPING COLONIAL ACT, 1869, 
 
 31 & 32 Vict. c. 129. 
 
 Grant of 
 terminable 
 certificates of 
 registry, subject 
 to conditions, in 
 colonics. 
 
 Ship to be 
 deemed regis- 
 tered. 
 
 Governors 
 abroad may 
 appoint sur- 
 veyors. 
 
 Construction of 
 Act. 
 
 Short title. 
 
 An Act to amend the Law relating to the Registration of Shii^s in British Possessions. 
 
 [31st July, 1868.] 
 Be it enacted, &c., as follows : 
 
 1. The governor or officer lawfully administering the government of any British 
 possession may from time to time, with the approval of one of H. ^I.'s principal 
 secretaries of state, make regulations providing that on an apx^lication for regis- 
 tration under the M. S. Act, 1854, in that possession of any ship not exceeding 60 
 tons burden, the registrar may grant, in lieu of a certificate of registry as recj^uired 
 by that Act, a certificate of registry to be terminable at the end of 6 months from 
 the granting thereof, or of any longer period ; and all certificates of registry 
 granted mider anj- such regulations shall be in such form and shall have effect 
 subject to such conditions as the regulations prescribe. 
 
 2. Notwithstanding anything in the M. S. Act, 1854, or in any other Act, any 
 ship to which a certificate is granted under any such regulations shall, while such 
 certificate is in force, and in relation to all things done or omitted during that 
 period, be deemed a registered British ship. 
 
 3. The governor of any British possession abroad may from time to time appoint 
 fit and proper persons to be surveyors, who shall have and exercise within such 
 possession all the powers with respect to the inspection of crew spaces that are 
 conferred upon the Board of Trade survevors in the U. K. bv section 9 of the 
 M. S. Act, 1867. 
 
 4. Tlxis Act shall be read as one Act with tlie M. S. Act, 1854, and the Acts 
 amending the same. 
 
 5. This Act may be cited as The Colonial Shipping Act, 1868. 
 
 THE MERCHANT SHIPPING COLONIAL ACT, 1869. 
 32 Vict. c. 11. 
 
 An Act for amending the Law relating to the Coasting Trade and Merchant Shipping 
 in British possessio7is. [13th May, 1869.] 
 
 Be it enacted, &c., as follows : 
 
 Preliminary. 
 
 Short title. 
 
 Definition of 
 terms: 
 " British 
 possession :" 
 
 " Legislature : 
 
 1. This Act may be cited as " The Merchant Shipping (Colonial) Act 1869." 
 
 2. In this Act, unless the context otherwise requires, — 
 
 The term ." British possession" means any territory or place situate within 
 H. M.'s dominions, and not forming part of the U. K., or of the Channel 
 Islands, or Isle of Man ; and all territories and places under one legislature 
 as hereinafter defined are deemed to be one British possession for the purposes 
 of this Act : 
 
 The term " legislature " includes any person or persons who exercise legislative 
 authority in the British possession, and where there are local legislatures as 
 well as a central legislature, means the central legislature only.
 
 32 viOT. c. 11. 885 
 
 3. This Act shall be proclaimed in every British possession by the governor Commencement 
 thereof as soon as may be after he receives notice of this Act, and shall come °^ ■^*^'^' 
 into operation in that British possession on the day of such proclamation, which 
 day is hereinafter referred to as the commencement of this Act. 
 
 Coasthig Trade. 
 
 4. After the commencement of this Act the legislature of a British possession, ^^^^^^^^1*^'°^^^^^ 
 by any Act or ordinance, from time to time, may regulate the coasting trade of i^y colonial 
 that British possession, subject in every case to the following conditions : legislature. 
 
 (1.) The Act or ordinance shall contain a suspending clause, providing that such 
 Act or ordinance shall not come into operation until H. M.'s pleasure 
 thereon has been publicly signified in the British possession in which it 
 has been passed. 
 
 (2.) The Act or ordinance shall treat all British ships (including the ships of 
 any British possession) in exactly the same manner as ships of the British 
 possession in which it is made. 
 
 (3.) Where by treaty made l)efore the passing of this Act H. M. has agreed to 
 grant to any ships of any foreign state any rights or privileges in respect 
 of the coasting trade of any British possession, such rights and privileges 
 shall be enjoyed by such ships for so long as H. M. has already agreed or 
 may hereafter agree to grant the same, anything in the Act or ordinance 
 to the contrary notwithstanding. 
 
 5. The following sections of the Customs Consolidation Act, 1853, are hereby ^!J<^io°^„328 and 
 repealed ; namely, Vict. c. 107, 
 
 Section 328 as from the commencement of tliis Act : repealed. 
 
 Section 163 as from the date in the case of each British possession at which 
 either an Act or ordinance with respect to the coasting trade made -wdthin 2 
 years after the commencement of this Act in such British possession comes 
 into operation, or if there is no such Act or ordinance, at which the said 2 
 years expire. 
 
 Merchant Bhipinng. 
 
 6. It shall be lawful for H. jM., by order in council, from time to time to declare, ^^gistrars of 
 Avith respect to the British possession mentioned in the order, the description of in Brit\sh"^^'' 
 l^ersons who are to be registrars of British ships in that British possession, and to possessions. 
 revoke any order so made. 
 
 After the date specified in the order, or, if no date is specified, after the date of 
 the proclamation of the order in the British possession, the order shall have eftect 
 as if it were contained in section 30 of the M. S. Act, ] 854. 
 
 7. In the construction of the M. S. Act, 1854, and of the Acts amending the Application 
 same, Canada shall be deemed to be one British possession. °J Cana'da^'^*^ 
 
 8. Where the legislature of any British possession pro^ddes for the examination colonial ccrti- 
 of, and grant of certificates of competency to persons intending to act as masters, ficates to 
 mates, or engineers on board British sliips, and the Board of Trade reports to ^f^^^^n^'iJfeei"' 
 H. M. that that thej^ are satisfied that the examinations are so conducted as to be ' ° 
 e(|ually efticient as the examinations for'the same purpose in the U. K. under the 
 
 Acts relating to Merchant Shipping, and that the certificates are granted on such 
 principles as to show the like qualifications and competency as those granted under 
 the said Acts, and are liable to be forfeited for the like reasons and in the like 
 manner, it shall be lawful for H. M., by order in council, 
 
 1. To declare that the said certificates shall be of the same force as if they had 
 
 been granted under the said Acts : 
 
 2. To declare that all or any of the provisions of the said Acts which relate to 
 
 certificates of competency granted under those Acts shall apply to the certi- 
 ficates referred to in the said order :
 
 886 
 
 THE COUNTY COTJETS ADM. JUR. AMT. ACT, 1869. 
 
 3. To impose such conditions and to make sucli regulations with respect to the said 
 
 certificates, and to the use, issue, delivery, cancellation, and suspension 
 
 thereof, as to H. M. may seem fit, and to impose penalties not exceeding 
 
 ^50 for the breach of such conditions and regulations. 
 
 Upon the publication in the London Gcv^ette of any such order in council as last 
 
 aforesaid, the provisions therein contained shall, from a date to be mentioned lor 
 
 the purpose in such order, take effect as if they had been contained in this Act. 
 
 It shall be lawful for H. M. in council to revoke any order made under tliis 
 section. 
 
 THE COUNTY COURTS ADMIRALTY JURISDICTION AMENDMENT 
 
 ACT, 1869. 
 
 32 & 33 Vict. c. 51. 
 
 An Act to amend the County Courts {Admiralty Jurisdiction) Act, 1868, and to 
 give Jurisdiction in certain Maritime Causes. 
 
 [2nd August, 1869.] 
 
 Be it enacted, &c., as follows : 
 Short title. 1. This Act may be cited as The County Courts Admiralty Jurisdiction Amend- 
 
 ment Act, 1869, and shall be read and interpreted as one Act with the County 
 Courts Admiralty Jurisdiction Act, 1868. 
 Extension of 2. Any county court appointed or to be appointed to have Admiralty jurisdic- 
 
 Iwps^and'^ °^^'' *^°°' ^^'^^^ '\'ivc\Q jurisdiction and all powers and authorities relating thereto, to 
 goods! try and determine the following causes : 
 
 (1.) As to any claim arising out of any agi'eement (a) made in relation to the 
 use or hire of any ship, or in relation to the carriage of goods in any 
 ship (6), and also as to any claim in tort (c) in respect of goods carried in 
 any ships, provided the amount claimed does not exceed £300. 
 (2.) As to any cause in respect of such claim or claims as aforesaid, but in 
 which the amount claimed is beyond the amount limited as above men- 
 tioned, Avhen the parties agree, liy a memorandum signed by them or by 
 their attorneys or agents, tliat any county coui-t having Admiralty juris- 
 diction, and specified in the memorandum, shall have jurisdiction. 
 
 3. The jurisdiction conferred liy this Act and by the County Courts Admiralty 
 Jurisdiction Act, 1868, may be exercised either by proceedings m rem or by pro- 
 ceedings in personam. 
 
 4. The 3rd section of the County Coiu-ts Admiralty Jurisdiction Act, 1868, 
 shall extend and apply to all claims for damage to ships, whether by collison or 
 otherwise, Avhen the amount claimed does not exceed £300. 
 
 ^^..u,,. ixiv;i- ^' ^^ '^^^^ Admiralty or maritime cause the judge may, if he think fit, or on the 
 
 cantiieassessors, request of either party, be assisted by 2 mercantile assessors ; and all the pro- 
 visions of the County Courts Admiralty Jurisdiction Act, 1868, with reference to 
 nautical assessors, shall apply to the appointment, approval, summoning, and 
 remuneration of such mercantile assessors. 
 Power of 6. The assessor of the Court of Passage of the borough of Liverpool shall have 
 
 orpa "•■"asie to" power from time to time to make general rules and orders for regulating the 
 ni.nke general practice and procedure of the Admiralty and maritime jurisdiction in the said 
 rules and orders. (.Qiirt, and for other pui-poses mentioned in section 35 of the County Courts Admi- 
 
 If parties agree, 
 causes iu respect 
 of claims of 
 )iigher amount 
 may be deter- 
 mined by county 
 court. 
 
 Proceedings in 
 reyn or in 
 personam. 
 
 Amendment of 
 sec. 3 of 31 & 32 
 Vict. c. 71. 
 
 As to appoint- 
 ment of mer- 
 
 (o) The County Courts have jurisdiction under 
 the County Courts Admiralty Jniisdiction Act, 
 1869, in actions in >tii> for breach of a charter- 
 jiarty. provided the damages claimed do not 
 exceed .-£300, although the Admiralty Court has 
 no original jurisdiction in such matters. The 
 Alina, 49 L. J. Ad. 40. See Simpson v. Blues, 
 
 L. R. 7 C. P. 290, 41 L, J. C. P. 121 ; yuova Baf- 
 faclina. 41 L. J. Ad. 37, 3 L. R. Ad. 483, a case as 
 to brokers sumg for their commission. See Cargo 
 ox X7v/ns, L. R. y P. C. 134 ; 42 L. J. Ad. 1. 
 
 (ft) Gamut V. liroim, 42 L. J. Ad. 1. 
 
 ((•) Pitrkif V. Flower. 43 L. J. Q. B. 33 ; L. R. 
 9 Q. B. lli.ante, pp. 619, 880.
 
 34 & 35 VICT. c. 110. 887 
 
 ralty Jurisdiction Act, 1868 ; and any general rales and orders already made or 
 hereafter to be made by the said assessor for any of the purposes aforesaid shall be 
 of full force and effect as if the same had been made mider this or the aforesaid 
 Act. 
 
 7. This Act shall come into operation on the 1st day of September, 1869. Commencement 
 
 THE MERCHANT SHIPPING ACT, 1871. 
 
 34 & 35 Vict. Chap. 110. 
 
 A)i Act to Amend the Merchant Shijjpitig Acts. 
 
 [21st August, 1871.] 
 
 Whereas it is expedient to amend the Merchant Shipping Acts, be it enacted, &c., 
 as follows : 
 
 Preliminary. 
 
 1. This Act may be cited as the Merchant Shipping Act, 1871. Short title. 
 
 2. This Act shall be construed as one with the M. S. Act, 1854, and the Acts Act to be con- 
 amending the same, and the said Acts and this Act may be cited collectively as M^sTArts^^ 
 the Merchant Shipping Acts, 1854 to 1871. 
 
 3. This Act shall come into operation on the 1st day of January, 1872. Commeneemen 
 
 Registry {Part II. of Merchcmt Bhippi^ig Act.) 
 
 4. [Repealed by 36 & 37 Vict. c. 85, s. 33.] 
 
 5. The Board of Trade may, in any case or class of cases in which they think it Ship's draught 
 expedient so to do, direct any person appointed by them for the purpose, to "^ ^^^^\ ^°,^^® 
 record, in such manner and with such particulars as the Board of Trade direct, the 
 
 draught of water of any sea-going ship, as shown on the scale of feet on her stem 
 and on her stern post, upon her leaving any dock, wharf, port, or harljour for the 
 purpose of proceeding to sea ; and such person shall thereupon keep such record, 
 and shall from time to time forward the same, or a copy thereof, to the Board of 
 Trade ; and such record, or any copy thereof, if produced by or out of the custody 
 of the Board of Trade, shall be admissible in evidence of the draught of water of 
 tlie ship at the time specified in the record. 
 
 The master of every British sea-goiug ship shall, upon her leaving any dock, 
 wharf, port, or harbour for the pm-pose of i^roceeding to sea, record her draught 
 of water in tlie ofiicial logbook (if any), and shall produce such record to any 
 principal officer of customs whenever rec[uired by him so to do, or in default of such 
 production shall incur a penalty not exceeding £20. 
 
 6. With respect to the names of British shiiDS, the following rules shall be Rules to be 
 observed : observed in 
 
 (1.) A ship shall not be described by any name other than that by which she is 
 for tlie time being registered : 
 
 (2.) No change shall be made in the name of a ship without the previous per- 
 mission of the Board of Trade signified in writing under their seal, or 
 under the hand of one of their secretaries or assistant secretaries. Upon 
 such permission being granted, the ship's name shall forthwith be altered 
 in the register book, in the ship's certificate of registry, and on her bows 
 and stern : 
 
 {d) See 36 and 37 Vict. c. 86, s. 4.
 
 888 MERCHANT SHIPPI^'G ACT, 1871. 
 
 (3.) If in any case it is slio-^-n to the satisfaction of the Board of Trade that the 
 name'of any ship has l^een changed without such permission as aforesaid, 
 they shall direct that her name 1 e altered into that which she bore before 
 such change, and the name shall be altered in the register book, in the 
 ship's certiticate of registry, and on her bows and stern accordingly : 
 (4.) TVhere a ship having once been registered has ceased to be so registered, no 
 person, unless ignorant of such previous registry, (proof whereof shall 
 lie on him,) shall apply to register, and no registrar shall knowingly 
 register, such ship, except by the name by which she was previously 
 registered, unless -nith the permission ol the Board of Trade granted as 
 aforesaid. 
 Every person who acts or suffei-s any person under his control to act in contraven- 
 tion of this section, or who omits to do, or suffers any person under his control to 
 omit to do, anything required by tliis section, shall for each offence incur a penaltv 
 not exceeding £100, and any principal officer of customs may detain the ship until 
 the provisions of this section are complied with. 
 
 Application for a change of name shall be made in writing to the Board of Trade. 
 If the board are of opinion that the application is made on reasonable grounds 
 tliey may entertain the same, and shall thereupon require notice thereof to be pub- 
 lished in such fomi and manner as thev think fit. 
 
 Masters and Seamen {Fart III. of Merchant Shijjping Act, 1854). 
 
 Sui-Tey of ships 7. "^Mienever in any proceeding against any seaman or apprentice belonging to 
 ^^^^^''iwf ^^^. ^^y ^^P ^'^^ deseition, or for neglecting or refusing to join or to proceed to sea in 
 wonhy. his ship, or for l^eing absent fi'om or quitting the same without leave, it is alleged 
 
 by one-foui'th of the seamen belonging to such ship, or, if the number of such 
 seamen exceed 20, by not less than 5 such seamen that such ship is by reason of 
 unseaworthiness, overloading, imj)roper loading, defective equipment, or for any 
 other reason, not in a fit condition to proceed to sea, or that the accommodation 
 in such ship is insufl&cient, the coiu-t having cognizance of the case shall take such 
 means as may be in their power to satisfy themselves concerning the truth or untruth 
 of such allegation, and shall for that purpose receive the evidence of the person or 
 persons making the same, and shall have power to summon any other witnesses 
 whose evidence they may think it desk-able to hear ; the court shall thereupon, 
 if satisfied that the allegation is groundless, proceed to adjudicate, but if not so 
 satisfied, shall cause such ship to be surveyed. 
 
 Provided that no seaman or apprentice charged with desertion, or with quitting 
 his ship without leave, shall have any right to apply for a survey under this 
 section unless previously to his quitting his ship he has complained to the master 
 of the circumstances so alleged in justification. 
 
 For the piuiioses of tliis section, the court shall require any of the surveyor^ 
 appointed by the Board of Trade, under the M. S. Act, 1854, or any pei-son 
 appointed for the pui-pose by the Board of Trade, or, if such sui-veyor or person 
 cannot be obtained without unreasonable expense or delay, or is not, in the opinion 
 of the court, competent to deal with the special circimistances of the case, then 
 any other impartial surveyor appointed by the court, and having no interest in 
 the ship, her freight, or cai'go, to survey the ship, and to answer any question con- 
 cerning her which the court may tliink fit to put. Such surveyor or other person 
 shall survey the ship, and make his report in wi-iting to the court, including an 
 answer to even- cjuestion put to him by the court. The court shall cause such 
 report to be communicated to the i)arties, and unless it is proved to the satisfac- 
 tion of the court that the opinions expressed in such report are erroneous, the 
 court shall determine the questions before them in accordance with those opinions. 
 For the purposes of such survey, a surveyor shall have all the powers of an 
 in-spector appointed by the Board of Trade, under the M. S. Act, 1854. 
 
 The costs (if any) of the survey shall be determined by the Board of Trade 
 according to a scale of fees to be fixed by them, and shall be paid in the first 
 instance out of the Mercantile Marine Fund.'
 
 35 & 36 VICT. c. 12>, QQ^ 
 
 1 it is proved to the satisfaction of tlie coiu-t that the ship is in a fit condition 
 to proceed to sea, or, as the case niaj^ be, that the accommodation is sufficient, the 
 costs of the survey shall he paid by the person or persons upon whose demand, or 
 in consequence of whose allegation, the survey was made, and may be deducted 
 by the master or owner out of the wages due or to become due to such person or 
 persons, and shall be paid over to the Board of Trade. 
 
 If it is proved that tlie ship is not in a tit condition to proceed to sea, or, as the 
 case may be, that the accommodation is insufficient, the costs of the survey shall 
 be paid to the Board of Trade by the master or owner. 
 
 8. Any naval court may, if they think fit, direct a survey of any ship which is Power for naval 
 the subject of an investigation held before them, and such survey shall be made gu"ygy^of^'i5J®pg 
 in the same way, and the surveyor who makes the same shall have the same 
 powers, as if the survey had been directed by a competent court in the course of 
 proceedings against a seaman or apprentice for desertion or a kindred offence. 
 
 Safety {Part IV. of Merchant Shipinwj Act, 1854). 
 
 9. [Repealed by 36 & 37 Vict. c. 85, s. 33.] 
 
 10. [Repealed l^y 36 & 37 Vict. c. 85, s. 33.] 
 
 11. [Repealed by 39 & 40 Vict. c. 80, s. 45, post] 
 
 12. On and after the 1st day of January, 1872, the 25th and 34th sections of Repeal of 
 
 the M. S. Act, 1854, and the 13th section of the M. S. Act Amendment Act, 1855, <=ert^i" ^f tjf'f 
 shall be repealed. c. io4 and is & 
 
 18 Vict. c. 91. 
 
 THE MERCHANT SHIPPING ACT, 1872. 
 
 35 & 36 Vict. c. 73. 
 
 An Act to amend, the Merchant Shipping Acts and the Passenger Acts. 
 
 [10th August, 1872,] 
 
 Whereas it is expedient to amend the Merchant Shipping Acts and the 
 Passengers Acts : 
 
 Be it enacted, &c. as follows : 
 
 Preliminary. 
 
 1. This Act may be cited as the Merchant Ship])ing Act, 1872. siiort title. 
 
 2. This Act shall come into operation on the 1st day of January, 1873. Commeucement 
 
 Measurement of Slivps, 
 
 3. The 23rd, 27th, 28th, and 29th sections of the M. S. Act, 1854, the 14th sec- Transfer to 
 tion of the M. S. Act Amendment Act, 1855, and the 4th section of the M. S. Act, Board of Trade 
 1871, shall be read and construed as if the Board of Trade were therein named commissioners 
 instead of the commissioners of customs. of Customs with 
 
 Registry, 
 
 respect to mea- 
 surement 
 of ships. 
 
 4. The 46th, 54th, 92nd, and 94th sections of the M. S. Act, 1854, shall be Transfer to 
 read and construed as if the registrar-general of seamen were therein named i"egistrar- 
 instead of the commissioners of customs, and the returns required to be trans- me'nof dutfe's'of 
 niitted by the said 94th section of the M, S. Act, 1854, shall be transmitted to the commissioners
 
 I 
 
 890 
 
 M. S. ACT, 1872, 
 
 Transfer to 
 Board of Trade 
 of powers and 
 duties of emi- 
 gration commis- 
 sioners. 
 
 of customs with registrar-general of seamen, and not to the custom house in London, and the 
 tr'^ofeWps^^' i"egistrar-general of seamen shall be called the registrar-general of shipping and 
 seamen. 
 
 Passenger Ships. 
 
 5. The 6th and 7th sections of the Passengers Act, 1855, except so much of 
 the latter section as provides for the immunity of emigration officers, shall he 
 repealed, and all powers and duties vested in or imposed on the emigration com- 
 missioners by the Passengers Act, 1855, and the Passengers Act Amendment Act, 
 1863, shall be transfeiTed to and imposed on the Board of Trade. 
 
 In the construction and for the piu'poses of the said Acts, the name of the 
 Board of Trade shall be deemed to be substituted for the name of the Emigration 
 Commissioners, and anything wliich might, if this Act had not passed, have been 
 done by the emigration commissioners, whether acting independently or \inder 
 the sanction or authority of one of H. M.'s principal secretaries of state, may be 
 done by the Board of Trade independently of such sanction or authority. 
 
 6. The provisions contained in the 83rd section of the Passengers Act, 1855, 
 sliall extend to any forms of application or other papers issued by or under the 
 authority of one of H. M.'s principal secretaries of state, for the use of persons 
 desirous of emigrating by his assistance, and to any certificate, document, or 
 statement adduced in support of any application to such secretary for such 
 assistance. 
 
 7. The powers confeiTed by the 13th section of the Passengers Act Amendment 
 Act, 1863, on one of H. M.'s principal secretaries of state, shall be transferred to 
 the Board of Trade. 
 
 Extension of 
 penalties for 
 offences con- 
 nected with ap- 
 plications for 
 assistance in 
 emigration. 
 
 Transfer to 
 Board of Trade 
 of certain 
 powers of 
 Secretary of 
 State under 
 Passengers Act. 
 
 Annual Survey of Passenger Steamers. 
 
 Passenger 8. The 304th section of the ]\I. S. Act, 1854, shall be repealed, and every 
 
 steamers to be passenger steamer shall be siu'veyed once at the least in every year in the manner 
 evei-y^year.'^'^ mentioned in the 4th pai-t of that Act. The fees to be charged for certificates 
 accordmg to issued iu respect of such survey shall not exceed for a yearly certificate tndce the 
 c^oi!^ ' s^^in named in the table marked T. in the schedule to the said Act as chargeable 
 for a 6 months certificate. 
 
 Trinity House 
 may niodify rule 
 as to pilotage 
 rates. 
 
 Alteration of 
 payments made 
 to Trinity House 
 Pilotage Fund 
 by Cinque Port 
 pilots. 
 
 Pilotage. 
 
 9. Notwithstanding anything in the 358th section of the M. S. Act, 1854, the 
 Trinity House may, by by elaw made with the sanction of H. M. in Coimcil, repeal or 
 relax the provisions of that section within the whole or any part of their district 
 so far as to allow any -pilot or class of pilots under their jurisdiction to demand or 
 receive and any master to offer or pay any rate less than the rate for the time 
 being demandable by law. 
 
 10. Whereas in pursuance of the Pilotage Law Amendment Act, 1853, the 
 several funds then belonging to the Cinque Ports pilots were merged into the 
 common fund called the Trinity House Pilotage Fund, and by the same Act 
 power was given to the Trinity House of Deptford Strond, with the approval of 
 the Board of Trade, from time to time to make regulations for altering and deter- 
 mining the payments and contributions to be made to the said pilotage fund by 
 Cinque Ports pilots licensed before the said Act came into operation : And 
 "whereas by one of the regulations made under the authority of the said Act it 
 was provided that each of the said Cinque Ports pilots should pay towards the 
 said fund lis. for each turn : And whereas it has proved that the turns 
 have been more numerous than was expected, and that the sums paid to the 
 Trinity House, and carried to the credit of the said fund, in respect of the said 
 turns have been larger than was assumed in making the calculations ui^on which 
 the said regulation was based : And whereas it is expedient that in lieu of the
 
 35 & 36 VICT. c. 73. 89l 
 
 said sum of 11.^. per turn the fixed annual sum of £1S 4s. sliould for the 
 future be paid by or in respect of each of the said pilots so long as he remains 
 unsuj^erannuated, and that the excess of the sum lieretofore paid in each year 
 by each pilot over the sum of X13 4.s. should be returned : And whereas doubts 
 have been entertained whether the purposes aforesaid can be effected without the 
 authority of Parliament : Be it enacted, that the Trinity House of Deptford 
 Strond shall, out of the Trinity House Pilotage Fund, repay to each of the 
 Cinque Ports pilots licensed before the Pilotage Law Amendment Act, 1853, came 
 into operation, or if he be deceased, to his executors or administrators, the 
 aggregate sum by which the sum of lis. per turn heretofore paid by him 
 exceeds the sum which he would have paid if he had paid ^13 4s. per annum ; 
 and that each of the said pilots shall, while he continues to act as a pilot, pay to 
 the said Trinity House the sum of lis. per turn as heretofore, from the 
 1st day of January in each year, until the sums contributed in the same year 
 amount to an aggregate sum equal to the product of ^13 4s. multiplied by tlie 
 number of pilots licensed as above who are then surviving and unsuperannuated, 
 and that when such aggregate sum is made up no further contributions shall be 
 required from the said pilots until after the 31st day of December in the same 
 year ; and if the said contributions during any one j'ear fall short of the said 
 aggregate sum, the said ^^ilots then survi^ang and unsuperannuated shall, at such 
 time and in such manner as the Trinity House may direct, make good such defi- 
 ciency by payment of an additional contribution per man, to be calculated 2^'>'0 
 rata upon the numl)er of turns which each may have can-ied during the said year, 
 and any such pilot failing to pay such additional contribution shall, in default of 
 such j^ayment, become liable to immediate removal from active service and super- 
 annuation upon such proportion of the full pension payable to such pilot as the 
 Trinity House may see fit. 
 
 11. Any pilotage authority may, if authorised in that behalf by order in council, Pilotage autho- 
 grant special licences qualifying the persons to whom they are granted to act as gpe^iafse^^*'^' 
 pilots for any part of the sea or channek beyond the limits of any pilotage licenses. 
 authority, so, however, that no pilot so licensed be entitled to supersede an 
 unlicensed pilot outside the limits of the authority by which he is licensed. 
 
 Chain Cables. 
 
 12. [Repealed by 37 & 38 Vict. c. 51, s. 8.] (a) 
 
 General. 
 
 13. All duties in relation to the survey and measurement of ships under tliis Duties of 
 Act or the Acts amended herel:)y shall be performed by the surveyors appointed surveyors, 
 under the 4th part of the M. S. Act, 1854, in accordance with such regulations 
 
 as maj' be from time to time made bv the Board of Trade. 
 
 14. [Repealed by 39 & 40 Vict. c. 80, s. 45.] 
 
 15. If any surveyor, or any person employed under the authority of the Penalty on 
 Passengers Act, 1855, demands or receives dii-ectly or indirectly otherwise than •'^."^'^'.^.?"J^' *'5' 
 by the dii-ection of the Board of Trade, any fee, remuneration, or gratuity what- tuitv.&c. for' 
 ever in respect of any of the duties performed by him under this Act or the duties performed 
 Acts amended hereby, he shall for every such oftence incur a penalty not "'^"^'" ^^^^ "^'='- 
 exceeding ^'50. 
 
 16. The owner of home trade ships or his agent may enter into time agree- Owner or agent 
 inents, in forms to be sanctioned by the Board of Trade, with individual seamen of home trade 
 to serve in any one or more ships belonging to him, which agreements need not hito'\ime'^acrce- 
 expire on either the 30th day of June or the 31st day of December, anything in mcuts which 
 the M. S. Act to the contrary notwithstanding : Provided always, that a dupli- half-ye°arfy^"° 
 cate of each agreement entered into under the pi'ovisions of tlie section be 
 forwarded to the registrar-general of shij^ping within 48 hoiU'S after it has been 
 
 entered into. 
 
 (a) Sec 27 & 28 Vict. c. 27, 34 & 35 Vict. c. 110, 37 & 38 Vict. c. 61, the acts relating to proving and 
 sale of chain cables and anchors.
 
 892 
 
 M. S. ACT, iSTSj 
 
 H.M. may accept 17. It shall be lawful for H. M. to accept from time to time the offers of any 
 rec"mmend?dbv P^^"''^^ whom the Lord High Admiral or the Commissioners for executing his 
 the Admiralty office may recommend, to serve as officers of reserve in the Royal Navy, upon 
 to sei-ye as such terms and conditions as to H. M. may from time to time seem fit, and the 
 
 Boyai Naral^ " Officers of the Eoyal Naval Eeserve Act, 1863," shall be read and construed as 
 Reserve. if this clause formed part of the said Act. 
 
 THE MEECHANT SHIPPING ACT, 1873. 
 36 & 37 Vict. c. 85. 
 
 An Act to amend the Merchant Shipping Acts 
 
 [5th August, 1873.] 
 
 Be it enacted, &c., as follows : 
 
 Short title. 
 
 Construction of 
 Act. 
 
 Preliminary. 
 
 1. This Act may be cited as the Merchant Shipping Act, 1873. 
 
 2. This Act shall be construed as one with the M. S. Act, 1854, and the Acts 
 amending the same, and the said Acts and this Act may be cited collectively as 
 the Merchant Shipping Acts, 1854 to 1873. 
 
 Registry {Part II. of Merchant Hhipinng Act, 1854). 
 
 Particulars to be 3. Ever}^ British ship registered after the passing of this Act shall before 
 Britf^ h° I'^gistry, and every British ship registered before the passing of this Act shall, on 
 
 or before the 1st day of January, 1874, be permanently and conspicuoitsly marked 
 to the satisfaction of the Board of Trade, as follows : 
 
 Her name shall be marked on each of her bows, and her name and the name of 
 
 her port of registry shall be marked on her stem, on a dark ground in white 
 
 or yellow letters, or on a light ground in black letters, such letters to be of a 
 
 length not less than 4 inches, and of proportionate breadth : 
 
 Her official number and the number denoting her registered tonnage shall be 
 
 cut m on her mam beam : 
 A scale of feet denoting her draught of water shall be marked on each side of 
 her stem and of her stern post in Eoman capital letters or in figures, not less 
 than 6 inches in length, the lower line of such letters or figures to coincide 
 with the draught line denoted thereby. Sitch letters or figures shall be 
 marked by being cut in and jjainted white or yellow on a dark ground, or in 
 such other way as the Board of Trade may from time to time approve. 
 The Board of Trade may, however, exempt any class of ships fi'om the require- 
 ments of this section or any of them. 
 
 If the scale of feet showing the ship's draught of water is in any respect inaccu- 
 rate, so as to be likely to mislead, the o'^iier of the ship shall inciu' a penalty not 
 exceeding £100. 
 
 The marks required by this section shall be permanently continued, and no 
 alteration shall be made therein, except in the event of any of the particulars 
 thereby denoted being altered in the manner provided by the M. S. Acts. 1854 
 to 1873. 
 
 Any owner or master of a British ship who neglects to cause his ship to be 
 marked as aforesaid, or to keep her so marked, and any person who conceals, 
 removes, alters, defaces, or obliterates, or sufters anj- person under his control to 
 conceal, remove, alter, deface, or obliterate any of the said marks, except in the
 
 36 & 37 VICT. 0. 85. 893 
 
 event aforesaid, or except for the purpose of escaping capture by an enemy, shall 
 for each offence incur a penalty not exceeding £100, and any officer of customs on 
 receipt of a certificate from a surveyor or inspector of the Board of Trade that a 
 ship is insufficiently or inaccurately marked may detain the same until the insuffi- 
 ciency or inaccuracy has been remedied. 
 
 Provided that no fishing vessel duly registered, lettered and numbered in pm^- 
 suance of the Sea Fisheries Act, 1868, shall be rec[uired to have her name and port 
 of registry marked under this section. 
 
 Provided also, that if any registered British ship is not within a port of the U, 
 K. at any time before the 1st day of January, 1874, she shall be marked as by this 
 section required within one month after her next return to a British port of 
 registiy subsequent to that date. 
 
 4. The record of the draught of water of anv sea-going ship required under Particulars 
 section 5 of the M. S. Act, 1871, shall in addition to the particulars thereby [» |!|(,ord^Jjf'^ 
 required, specify the extent of her clear side in feet and inches. draught of 
 
 The term " clear side" means the height from the water to the upper side of the water, 
 plank of the deck from which the depth of hold as stated in the register is 
 measured, and the measurement of the clear side is to be taken at the lowest part 
 of the side. 
 
 Every master of a sea-going ship shall, upon the request of any person appointed 
 to record the ship's draiight of water, permit such person to enter the ship and to 
 make such inspections and take such measurements as may be requisite for the 
 purpose of such record, and any master who fails so to do, or impedes or suffers 
 anyone xxnder his control to impede any person so appointed in the execixtion of 
 his duty, shall for each offence incur a penalty not exceeding £5. 
 
 5. Where a foreign ship, not having at any previous time been registered as a Rules as to 
 British ship, becomes a British ship, no person shall apply to register, and no f^^9^ °^. 
 registrar shall knowingly register such ship, except by the name which she bore as p^ace^foii ^^ 
 
 a foreign ship immediately before becoming a British sliip, unless with the per- British register. 
 mission of the Board of Trade granted in manner directed by section 6 of the M. S. 
 Act, 1871. 
 
 Any person who acts or suffers any person under his control to act in contra- 
 vention of tliis section shall for each offence incur a penalty not exceeding £100. 
 
 6. Where a ship has ceased to be registered as a British ship by reason of hav- Restrictions 
 ing been wrecked or abandoned, or for any reason other than capture by the °^ re-regis- 
 enemy or transfer to a person not qualified to o'vvn a British ship, such ship shall abandoned 
 not be re-registered until she has, at the expense of the applicant for registration, ships. 
 been surveyed by one of the surveyors appointed by the Board of Trade and 
 certified by him to be seaworthy. 
 
 Masters and Seamen {Part III. of Merchant Bhifj^ing Act, 1854.) 
 
 7. Any agreement with a seaman made under section 149 of the M. S. Act, Agreements 
 1854, may, instead of stating the nature and duration of the intended voyage or '^^''f'' seamen, 
 engagement as by that section requ^ired, state the maximmn period of the voyage or 
 engagement, and the places or parts of the world (if any) to which the voyage or 
 engagement is not to extend. 
 
 8. The owner or master of any British vessel engaged in fishing oft' the coast of Agreements 
 the U. K. may enter into an agreement with any person employed on such vessel ^''•^'^ flsher- 
 that such person shaU. be remunerated wholly by a share in the profit of the fish- ™^°' 
 
 ing adventure. 
 
 Every such agreement shall be in writing or in print, or partly in writing and 
 partly in print, and shall be signed by the contracting parties in the presence of a 
 superintendent or deputy sxiperintendent of a mercantile marine office. 
 
 The superintendent or deputy superintendent shall, before such agi'eement is 
 signed, read and (if necessary) explain the same to the contracting parties, and 
 shall attest the signature of the agreement, and certify that it has been read to and 
 agreed to b)^ the contracting parties. 
 
 Any such agreement, if made in the manner by this section required, shall be
 
 894 
 
 M. S. ACT, 1873, 
 
 Compensation 
 TO seamen for 
 iinnecessarj- 
 detention on 
 charge of 
 desertion. 
 
 Power for 
 Board of Trade 
 to establish 
 mercantile 
 marine offices 
 and to hold 
 examinations 
 at certain 
 ports. 
 
 valid ami Ijinding on all the contracting parties, notwithstanding anything con- 
 tained in section 182 of the M. S. Act, 1854. 
 
 9. If a seaman or ajiprentice belonging to any ship is detained on a charge of 
 desertion or any kindred offence, and if upon a survey of the ship being made 
 under section 7 of the M. 8. Act, 1871, it is proved that she is not in a fit 
 condition to proceed to sea, or that her accommodation is insuliicieut, the owner 
 or master of the ship shall be liable to pay to such seaman or aj^prentice such 
 compensation for his detention as the court having cognizance of the proceedings 
 may award, 
 
 10. In any case where the business of a mercantile marine office is conducted 
 otherwise than under a local marine board, the Board of Trade may, if they thiuk 
 lit, instead of conducting such business at a custom house or otherwise, establish a 
 merct utile marine office, and for that purj)ose procure the reqitisite buildings and 
 property, and from time to time appoint and remove all the requisite superin- 
 tendents, deputies, clerks, and servants. They may also in the like case make all 
 such provisions and exercise all such powers with respect to the holding of 
 examinations for the purpose of granting certificates of competency as masters, 
 mates, or engineers, to persons desirous of obtaining the same, as might have been 
 made or exercised by a local marine board, 
 
 11. [Eepealed by 39 & 40 Vict, c, 80, s. 45. J 
 
 Safety and Prevention of Accidents {Part IV. of Merchcoit Slii'pping Act, 1854). 
 
 Power for 
 Board of 
 Trade to 
 vary require- 
 ments as to 
 boats. 
 
 Dnties of 
 masters in 
 case of 
 collision. 
 
 Liability for 
 infringement 
 of regulations 
 in cases of 
 collision. 
 
 12. [Eepealed by 39 & 40 Vict, c, 80.] 
 
 13. [Repealed by 39 & 40 Vict. c. 80.] 
 
 14. [Repealed by 39 & 40 Vict. c. 80.] 
 
 15. In the case of any sliip surveyed under the 4th part of the M. S. Act, 1854, 
 the Board of Trade may at the request of the owners aitthorise the reduction of 
 the number and the variation of the dimensions of the boats required for the shii) 
 by section 292 of that Act, and also the substitution of rafts or other appliances 
 for saving life for awj such boats, so nevertheless that the boats so reduced or 
 varied and tlie rafts or other appliances so substituted be sufficient for the persons 
 carried on board the ship. 
 
 Section 293 of the said Act shall extend to any such rafts or appliances in the 
 .same manner as if they were boats. 
 
 16. In every case of collision between two vessels it shall be the duty of the 
 master or person in charge of each vessel, if and so far as he can do so without 
 danger to his own vessel, crew, and passengers (if any), to stay by the other vessel 
 until he has ascertained that she has no need of fiu-ther assistance, and to render 
 to the other vessel, her master, crew, and passengers (if any), such assistance as 
 maj' he. practicable and as may be necessary in order to save them from any 
 danger caused by the collision ; and also to give to the master or person in charge 
 of the other vessel the name of his own vessel, and of her port of registry, or of 
 the port or place to which she belongs, and also the names of the ports and. places 
 from which and to wliich she is bound. 
 
 If he fails so to do, and no reasonable cause for such failure is shown, the col- 
 lision shall, in the absence of proof to the contrary, be deemed to have been caused 
 by his wrongful act, neglect, or default. 
 
 Every master or person in charge of a Briiish vessel who [fails, without reason- 
 able cause, to render such assistance or give such information as aforesaid shall be 
 deemed guilty of a misdemeanor, and if he is a certificated officer an inquiry into 
 Ills conduct may be held and his certificate may be cancelled or suspended. 
 
 17. If in any case of collision it is proved to the court before which the case is 
 tried that any of the regulations (a) for preventing collision contained in or made 
 imder (6) the M. S, Acts, 1854 to 1873, has been iirfiinged, the shiji by which such 
 
 (a) Tlie LaAy D(nmsMre,i8 L. J. Ad. 41, where 
 the collision was in the river ilersey. 
 
 (b) See ante, p. 581.
 
 36 & 37 VICT. c. 85. 895 
 
 regulation lias been infringed shall loe deemed to be in fault, unless it is shown to 
 the satisfaction of the court that the circumstances of the case made departure from 
 the regulation necessary (c). 
 
 18, The signals specified in the first schedule to tliis Act shall he deemed to he signals of 
 signals of distress. dlstvess 
 
 Any master of a vessel who uses or displays, or causes or permits any person 
 under his authority to use or display, any of the said signals, except in the case of 
 a vessel being in distress, sliall be liable to pay compensation for any labour 
 undertaken, risk incurred, or loss sustained in consequence of such signal having 
 been supposed to be a signal of distress, and such compensation may, without pre- 
 judice to any other remedy, be recovered in the same manner in which salvage is 
 recoverable. 
 
 19, If a vessel requires the services of a pilot, the signals to be used and dis- Signals for 
 played shall be those specified in the 2nd schedule to this Act. 
 
 Any master of a vessel who uses or displays, or causes or permits any person 
 under his authority to use or display, any of the said signals for any other purpose 
 than that of summoning a pilot, or uses or causes or permits any person under liis 
 authority to use any other signal for a pilot, shall incur a penalty not exceeding 
 ^20. 
 
 20, H, M, may from time to time by order in council repeal or alter the rules Power to alter 
 as to signals contained in the schedules to this Act, or make new rules in addi- gfi^afs^ ^^ 
 tion thereto, or in substitution therefor, and any alterations in or additions to 
 
 such rules made in manner aforesaid shall be of the same force as the rules in the 
 said schedules, 
 
 21, Any shipowner who is desirous of using, for the purposes of a private code, Private signals. 
 any rockets, lights, or other similar signals, may register such signals with the 
 
 • Board of Trade, and the board shall give public notice of the signals so registered 
 in such manner as they may think requisite for preventing such signals from being 
 mistaken for signals of distress or signals for pilots. 
 
 The board may refuse to register any signals which in their opinion cannot 
 easily be distinguished from signals of distress or signals for pilots. 
 
 When any signal has been so registered tlie use or display tliereof by anj^ person 
 acting under the authority of the shipowner in whose name it is registered shall 
 not subject any person to any of the penalties or liabilities by this Act imposed 
 xipon persons using or displaying signals improperly. 
 
 22, If the managing owner, or in the event of there being no managing owner. Notice to be 
 the ship's husl)and of any British ship have reason, owing to the non-appearance of &i^'e° '^f 
 such ship, or to any other circumstance, to apprehend that such shiji has been wholly fdss'of^ ship, 
 lost, he shall, as soon as conveniently may be, send to tlie Board of Trade notice in 
 Aniting of such loss and of the probalde occasion thereof, stating the name of the 
 
 ship and her official number (if any), and the port to which she belongs, and if 
 he neglect to do so within a reasonable time he sliall inciu^ a penalty not exceed- 
 ing £50. 
 
 23, If any person sends or attempts to send by, or not being the master or owner Restrictions 
 of the vessel carries or attempts to carry in any vessel, Britisli or foreign, any on carriage 
 dangerous goods; (that is to say,) aquafortis, vitriol, naphtha, benzine, gunpowder, "ood"^^"^"^ 
 lucifer matches, nitro-glycerine, petroleum, or any other goods of a dangerous ° 
 nature, without distinctly marking their nature on the outside of the package 
 containing the same, and giving written notice of the nature of such goods and of 
 
 the name and address of the sender or carrier thereof to the master or owner of 
 the vessel at or before the time of sending the same to be shipped or taking the 
 same on board the vessel, he shall for every such offence incur a penalty not 
 exceeding ,£100 : Provided that if such person show that he was merely an agent 
 in the shipment of any such goods as aforesaid, and was not aware and did not 
 
 (c) The plaintiff must shew that the infring- the Board of Trade is not sufficient to make a 
 
 ment charged has some connection with the col- departure from the reguhitions necessary within 
 
 lision : On-iirrs of Faniiii M. Can-ill, ap]).. v. the meaning of this section. The Tiizah,4:S L. J. 
 
 Owners of the Peru, resps., 44 L. J. Ad. 34 ; see Ad. 1.5. It has been doubted whether this clause 
 
 the Condor, 48 L. J. Ad. 33. The fact that the ajiplies to foreign vessels : Oicners of Fanny 
 
 infringement is partially caused in conseciuence M. Carvill v. Owners of the Peru, supra. 
 of obedience to the instructions of a surve3'or of
 
 896 
 
 M. S. ACT, 1873, 
 
 Penalty for 
 misdescription 
 of dangerous 
 goods. 
 
 Power to refuse 
 to carry goods 
 suspected of 
 being dan- 
 gerous. 
 
 Power to throw 
 overboard 
 dangerous 
 goods. 
 
 Forfeiture of 
 dangerous 
 goods impro- 
 perly sent. 
 
 Saving as to 
 Dangerous 
 Goods Act. 
 
 suspect and had no reason to .suspect that the goods shipped by him v^eve of a 
 dangerous nature, tlie penalty which he incurs .shall not exceed ^10. 
 
 24. If any person knowingly sends or attempts to send by, or carries or attempts 
 to carry in any ves.^el, British or foreign, any dangerous goods or goods of a 
 dangeroxts nature, under a false desci-iption, or falsely describes the sender or 
 carrier thereof, he shall incur a penalty not e.xceeding £500. 
 
 25. The master or owner of any vessel, British or foreign, may refuse to take 
 on board any package or parcel which he suspects to contain goods of a dangerous 
 nature, and ma}' recpiire it to be opened to ascertain the fact. 
 
 26. Where any dangerous goods as defined in this Act, or any goods which, in 
 the judgment of the master or owner of the vessel, are of a dangerous nature, 
 have been sent or brought aboard any vessel, British or foreign, without being 
 marked as aforesaid, or Avithout such notice ha\dng been given as aforesaid, the 
 master or owner of the vessel may cause such goods to be thrown overboard, 
 together with any package or receptacle in which they are contained ; and neither 
 the master nor the owner of the vessel shall, in respect of such tlir owing over- 
 board, be subject to any liability, civil, or criminal, in any court. 
 
 27. ^Miere any dangerous goods have been sent or carried, or attempted to be 
 .sent or carried, on board any vessel, British or foreign, without being marked as 
 aforesaid, or without such notice having been given as aforesaid, and where any 
 such goods have been sent or carried, or attempted to be sent or carried, under a 
 false description, or the sender or carrier thereof has been falsely described, it 
 shall be lawful for any court having Admiralty jurisdiction to declare such goods, 
 and any package or receptacle in which they are contained, to be and they shall 
 thereupon be forfeited, and when forfeited shall be disposed of as the court 
 directs. 
 
 The court shall have and may exercise the aforesaid powers of forfeiture and 
 disposal notwithstanding that the owner of the goods have not committed any 
 ofl'ence under the provisions of this Act relating to dangerous goods, and be not 
 before the court, and have not notice of the proceedings, and notwithstanding that 
 there be no evidence to show to whom the goods belong ; nevertheless the court 
 may, in its discretion, require such notice as it may direct to be given to the owner 
 or shipper of the goods before the same ai'e forfeited. 
 
 28. The provisions of this Act relating to the carriage of dangerous goods shall 
 be deemed to be in addition to and not in substitution for or in restraint of anj' 
 other enactment for the like object, so nevertheless that nothing in the said pro- 
 visions shall be deemed to atithorise that any j)erson be sued or prosecuted twice 
 in the same matter. 
 
 Miscellaneous and Repeal. 
 
 H. M. may, 
 by order 
 in council, 
 declare cei- 
 tain foreign 
 ports ports of 
 registiy. 
 
 Fees in respect 
 of surreys, &c. 
 
 Board of Trade 
 may sue in name 
 of its officers. 
 Certain sections 
 not to come 
 into force mitil 
 Ist Xovember, 
 1873. 
 
 29. Where, in accordance with the Foreign Jurisdiction Acts, H. M. exercises 
 jurisdiction wdthinany port out of H, M.'s dominions, it shall be lawful for H. M., 
 by order in council, to declare such port a port of registry (in this Act referred to as a 
 foreign port of registry), and by the same or any subsequent order in coitncil to 
 declare the description of persons who are to be the registrars of British shijss at 
 such foreign port of registry, and to make regulations Avitli respect to the registiy 
 of British ships thereat. 
 
 Upon such order coming into operation it shall have efi'ect as if it were enacted 
 in the M. S. Acts, 1854 to 1873, and shall, subject to any exceptions and regula- 
 tions contained in the order, apply in the same manner, as near as may be, as if 
 the port mentioned in the order were an ordinary port of registry, 
 
 30. There shall be paid in respect of the several measurements, inspections, and 
 surveys mentioned in the 3rd schedule hereto such fees, not exceeding those 
 specified in that behalf in the said schedule, as the Board of Trade may from time 
 to time determine. 
 
 31. In any legal proceedings under the M, S. Acts, 1854 to 1873, the Board of 
 Trade may take proceedings in the name of any of their officers. 
 
 32. The following sections of this Act, that is to sav, sections 16, 18, 19, 20, 21, 
 22, 23, 24, 25, 26, 27, 28, shall not come into operation until the 1st day of 
 November, 1873.
 
 36 & 37 VICT. c. 85. 897 
 
 33. Section 29 of the M. S. Act Amendment Act, 1862, and sections 4 and 10 Repeal of cer- 
 of the M. S. Act, 1871, are hereby repealed : and on and after the 1st day of tain sections of 
 November, 1873, sections 327 and 329 of the M. S. Act, 1854, sections 33 and 38 IgeVand itn'' 
 of the M. S. Act Amendment Act, 1862, and section 9 of the M. S. Act, 1871, and of certain 
 shall be repealed ; but this repeal shall not affect— _ o^her sectons 
 
 (1.) Anything duly done before this Act comes into operation ; issV. i862, and 
 
 (2.) Any right acquired or liability accrued before this Act comes into opera- 1871. 
 
 tion ; 
 (3.) Any penalty, forfeiture, or other punishment incurred or to be incurred in 
 respect of any offence committed before this Act comes into opera- 
 tion ; or, 
 (4.) The institution of any legal proceeding or any other remedy for ascertain- 
 ing, enforcing, or recovering any such liability, penalty, forfeiture, or 
 punishment as aforesaid. 
 
 SCHEDULES. 
 
 SCHEDULE I. 
 
 Signals of Distress. 
 
 In the Daytime. — The following signals, numbered 1, 2, and 3, when used or dis- 
 played together or separately, shall be deemed to be signals of distress in the day- 
 time : — 
 
 1. A gun fired at intervals of about a minute ; 
 
 2. The Internati':^nal Code signal of distress indicated by N. C. ; 
 
 3. The distant signal, consisting of a square flag having either above or below it 
 
 a ball, or anything resembling a ball. 
 At Night. — The following signals, numbered 1, 2, and 3, when used or dis- 
 played together or separately, shall be deemed to be signals of distress at 
 night : — 
 
 1. A gun fired at intervals of about a minute ; 
 
 2. Flames on the ship (as from a burning tar barrel, oil barrel, &c.); 
 
 3. Kockets or shells, of any colour or description, fired one at a time, at short 
 
 intervals. 
 
 SCHEDULE II. 
 
 Signals to be made by Ships wanting a Pilot. 
 
 Li the Daytime. —The following signals, numbered 1 and 2, when used or dis- 
 played together or separately, shall be deemed to be signals for a pilot in the day- 
 time, viz. : — 
 
 1. To be hoisted at the fore, the Jack or other national colour usually worn by 
 
 merchant ships, having round it a white border, one fifth of the breadth of 
 the flag ; or 
 
 2. The International Code pilotage signal indicated by P. T. 
 
 At Night. — The following signals numbered 1 and 2, when used or displayed 
 together or separately, shall be deemed to be signals for a pilot at night, viz. : 
 
 1. The pjTotechnic light commonly known as a blue light every fifteen 
 
 minutes ; or 
 
 2. A bright white light, flashed or shown at short or frequent intervals just 
 
 above the bulwarks, for about a minute at a time.
 
 898 
 
 M. S. ACT, 1873, 
 
 SCHEDULE III. 
 
 Table op Maximum Fees to be paid for the Measurement, Survey, and 
 Inspection of Merchant Ships. 
 
 1, Fm- Measurement of Tonnage. 
 
 For a sliip under 50 tons register tonnage 
 
 from 50 to 100 tons „ 
 
 „ 100 to 200 „ „ 
 
 „ 200 to 5D0 „ „ 
 
 „ 500 to 800 „ „ 
 
 „ 800 to 1,200 „ „ 
 
 „ 1,200 to 2,000 „ „ 
 
 „ 2,000 to 3,000 „ „ 
 
 „ 3,000 to 4,000 „ „ 
 
 „ 4,000 to 5,000 ,. ., ..^ 
 
 „ 5,000 and. upwards „ 
 
 £ 
 
 s. 
 
 d. 
 
 ... 1 
 
 
 
 
 
 ... 1 
 
 10 
 
 
 
 ... 2 
 
 
 
 
 
 ... 3 
 
 
 
 
 
 ... 4 
 
 
 
 
 
 ... 5 
 
 
 
 
 
 ... 6 
 
 
 
 
 
 / 
 
 
 
 
 
 ... 8 
 
 
 
 
 
 ... 9 
 
 
 
 
 
 ... 10 
 
 
 
 
 
 2. For the Insiiedion of the Berthing or Bleeping Accommodation of the Crexc. 
 
 For each visit to the ship ... 10 
 
 Provided as follows : 
 
 1. The aggregate amount of the fees for any such inspection shall not exceed 
 
 one pound (£l) whatever be the number of separate \dsits. 
 
 2. T\Tien the accommodation is inspected at the same time with the measure- 
 
 ment of the tonnage, no separate fee sliall be charged for such inspection. 
 
 3. For the Siirvetj of Emigrant Ships. 
 
 For an ordinary survey of the ship, and of her equipments, accom- 
 modation, stores, light, ventilation, sanitary arrangements, and 
 medical stores... ... 
 
 For a special survey ... ... ... ... 
 
 In respect of the medical examination of passengers and crew, for 
 every hundred persons or fraction of a hunch'ed persons exa- 
 mined ... 
 
 £ s. d. 
 
 10 
 15 
 
 1 
 
 4. For the Ins])eetion of Lights and Fog Signals. 
 
 £ s. d. 
 
 For each visit made to a ship on the application of the owner, and for 
 
 each visit made where the lights or fittings are found defective ... 10 
 Provided tliat the aggregate amoimt of fees for any such inspection shall not exceed 
 one poimd {£1) whatever l)e the number of separate visits.
 
 39 & 40 VICT. c. 80. 899 
 
 37 & 38 Vict. c. 52. 
 
 An Ad to make regulations for indenting Collisions in the Sea Channels leading to 
 the Paver Mersey. [30tlx July, 1874.] 
 
 Wliereas it is exj)edient to make special regulations for preventing collisions 
 between vessels in the sea channels leading to the River Mersey : 
 Be it enacted, &c., as follows : 
 
 1. Any general regulations for preventing collisions at sea for the time being in Special regula- 
 force under the provisions of the M. S. Acts shall be construed as if the following ventin^^or' 
 regulations were added thereto ; that is to say, lisions ni the 
 
 (1.) Every steamship, and every vessel in tow of any steamship, -when navi- to thTRiver 
 gating in the sea channels or approaches to the River Mersey, between Mersey (a). 
 the Rock Lighthouse and the furthest point seawards to which such sea 
 channels or approaches respectively are for the time being buoyed on 
 both sides, shall, whenever it is safe and practicable, keep to that side of 
 the fairway or mid-channel wliich lies on the starboard side of such 
 steamship or vessel in tow. 
 
 (2.) Every ship at anchor in the said sea channels or approaches, within the 
 limits aforesaid, shall carry the single white light prescribed by Article 7 
 of the General Regulations for preventing Collisions at Sea, made under 
 the authority of the " M. S. Acts Amendment Act, 1862," at a height not 
 exceeding 20 feet above the hull, suspended from the forestay, or other- " 
 wise near the bow of the ship where it can be best seen ; and, in addition 
 to the said light, all ships having two or more masts shall exhibit another 
 similar white light, at double the height of the l)ow light, at the main or 
 mizzen-peak, or the boom topping lift, or other position near the stern 
 where it can be best seen. 
 
 2. Tlus Act shall not come into operation until the 1st day of November, 1874. Commencement 
 
 ' of Act. 
 
 THE MERCHANT SHIPPING ACT, 1876. 
 
 39 & 40 Vict. c. 80. 
 
 An Act to amend the Merchant Bhipinng Acts. 
 
 [i5th August, 1876.] 
 Be it enacted, &c., as follows : 
 
 Preliminary. 
 
 1. This Act may be cited as the Merchant Shipping Act, 1876. Short title. 
 
 2. Tliis Act shall be construed as one with the M. S. Act, 1854, and the Acts Construction of 
 amending the same ; and the said Acts and this Act may be cited collectively as •^'^*' 
 
 the Merchant Shipping Acts, 1854 to 1876. 
 
 3. This Act shall come into operation on the 1st day of October, 1876 (which Commencement 
 day is in this Act referred to as the commencement of this Act) ; nevertheless any °^ ■^°''' 
 orders in council and general rules under this Act may be made at any time after 
 
 the passing of this Act, but shall not come into operation before the commence- 
 ment of tliis Act. 
 
 (a) The La(l>] DomiKliirP, 43 L. J. Ad. 41. 
 
 3 Ji 2
 
 900 
 
 M. S. ACT, 1876, 
 
 Sending unsea- 
 worthy ship to 
 sea n misde- 
 meanor. 
 
 Obligation of 
 shipowner to 
 crew with 
 respect to use 
 of rcasonahle 
 efforts to secure 
 seaworthiness. 
 
 Power to de- 
 tain unsafe 
 ships, and pro- 
 cedure for such 
 detention. 
 
 Unseairorthy Hhi2)-i. 
 
 4. Every person wlio sends or attempts to send, or is party to sending or 
 attempting to send a British ship to sea in such unseaworthy state that the life of 
 any person is likely to be thereby endangered, shall be guilty of a misdemeanor, 
 unless he proves that he used all reasonable means to insure her being sent to sea 
 in a seaworthy state, or that her going to sea in such unseaworthy state was, under 
 the circumstances, reasonable and justifiable, and for the purpose of giving such 
 proof he may give e\adence in the same manner as any other witness. 
 
 Every maker of a British ship who knowingly takes the same to sea in such 
 unseaworthy state that the life of any person is likely to be thereby endangered 
 shall be guilty of a misdemeanor, unless he proves that her going to sea in such 
 unseaworthv state was, under the circumstances, reasonable and justifiable, and 
 for the purpose of giving such proof he may give evidence in the same manner as 
 any other witness. 
 
 A prosecution under this section shall not be instituted except by or with the 
 consent of the Board of Trade, or of the governor of the British possession in 
 which such prosecution takes place. 
 
 A misdemeanor under this section shall not be punishable upon summary 
 conviction. 
 
 5. In eveiy contract of service, express or implied, between the owner of a ship and 
 the master or any seaman thereof, and in every instrument of apprenticeship whereby 
 any person is bound to serve as an apprentice on board any ship, there shall be im- 
 plied, notwithstanding any agreement to the contrary, an obligation on the owner of 
 the ship, that the oAnier of the ship, and the master, and every agent charged with 
 the loading of the ship or the preparing thereof for sea, or the sending thereof to 
 sea, shall use all reasonable neans to insure the seaworthiness of the ship for the 
 voyage at the time when the voyage commences, and to keep her in a seaworthy 
 condition for the voyage during the same ; Provided, that nothing in this section 
 shall subject the owner of a ship to any liability by reason of the ship being sent 
 to sea in an unseaworthy state where, owing to special circumstances, the so 
 sending thereof to sea is reasonable and justifiable. 
 
 6. "\Vhere a British ship, being in any port of the U. K., is, by reason of the 
 defective condition of her hull, equipments, or machinery, or by reason of over- 
 loading or improper loading, unfit to proceed to sea without serious danger to 
 human life («), having regard to the nature of the service for which she is 
 intended, any such ship (hereinafter referred to as "unsafe") may be pro^-ision- 
 ally (a) detained for the purpose of being surveyed, and either finally detained ,or 
 released, as follows : 
 
 (1.) The Board of Trade, if thej* have reason to believe on complaint, or other- 
 wise, that a British ship is unsafe, may provisionally order the detention 
 of the ship for the purpose of being surveyed. 
 
 (2.) TVTien a ship has been pro\'isionally detained there shall be forthwith served 
 on the master of the ship a written statement of the grounds of her 
 detention, and the Board of Trade may, if they think fit, appoint some 
 competent person or persons to survey the ship and report thereon to the 
 board. 
 
 (3.) The Board of Trade on receiving the report may either order the ship to be 
 released or, if in their opinion the ship is unsafe, may order her to be 
 finally detained, either absolutely, or until the performance ot such con- 
 ditions with respect to the execution of repairs or alterati'^ns, or the 
 unloading or reloading of cargo, as the board think necessary for the 
 protection of human life, and may from time to time vary or add to any 
 such order. 
 
 (4.) Before the order for final detention is made a copy of the report shall be 
 served upon the master of the ship, and within 7 days after such 
 
 (a) Sec Ldvis v. Gray, 45 L. J. C, P. 720, decided on repealed statute,
 
 39 & 40 VICT. c. 80. 901 
 
 service the owner or master of the ship may appeal in the prescribed 
 manner to the court of survey (hereinafter mentioned) for the port or 
 district where the shi^o is detained. 
 
 (5.) Where a ship has been provisionally detained, the owner or master of the 
 ship, at any time before the person appointed under this section to survey 
 the ship makes such survey, may require that he shall be accompanied 
 by such person as the owner or master may select out of the list of 
 asses-ors for the court of survey (nominated as hereinafter mentioned), 
 and in such case if the surveyor and assessor agree, the Board of Trade 
 shall cause the ship to be detained or released accordingly, but if they 
 differ, the Board of Trade may act as if the requisition had not been 
 made, and the owner and master shall have the like appeal touching the 
 report of t he surveyor as is before provided by this section. 
 
 (6.) Where a ship has been provisionally detained, the Board of Trade may at 
 any time, if they think it expedient, refer the matter to the court of 
 survey for the port or district where the ship is detained. 
 
 (7.) The Board of Trade may at any time, if satisfied that a ship detained under 
 this Act is not unsafe, order her to be released either upon or without 
 any conditions. 
 
 (8.) For the better execution of this section, the Board of Trade, with the con- 
 sent of the Treasury, may from time to time appoint a sufficient number 
 of fit officers, and may remove any of them. 
 
 (9.) Any officer so appointed (in this Act referred to as a detaining officer) shall 
 have the same power as the Board of Trade have under this section of 
 provisionally ordering the detention of a ship for the purpose of being 
 surveyed, and of appointing a person or persons to survey her ; and if 
 he thinks that a sliip so detained by liim is not unsafe may order her to 
 be released. 
 
 (10.) A detaining officer shall forthwith report to the Board of Trade any order 
 made by him for the detention or release of a ship. 
 
 7. A court of survey for a port or district shall consist of a iudge sitting with Constitution of 
 . J L J o a court of survey 
 two assessors. , _ for uppeals. 
 
 The judge shall be such person as may be summoned for the case in accordance 
 with the rules made under this Act out of a list (from time to time approved for 
 the port or di.-trict by one of H. M.'s principal secretaries of state, in this Act 
 referred to as a secretary of state), of wreck commissioners appointed under this 
 Act, stipendiary or metropolitan police magistrates, judges of county courts, and 
 other fit persons ; but in any special case in which the Board of Trade think it 
 expedient to appoint a wreck commissioner, the judge shall 1)6 such wreck com- 
 missioner. 
 
 The assessors shall be persons of nautical engineering or other special skill and 
 experience ; one of them shall be appointed by the Board of Trade, either 
 generally or in each case, and the other shall be summoned in accordance with 
 the rules under this Act by the registrar of the court, out of a list of persons 
 periodically nominated for the purpose by the local marine board of the port, or, 
 if there is no such board, by a body of local shipowners or merchants approved for 
 the purpose by a secretary of state, or, if there is no such list, shall be appointed 
 by the judge ; if a secretary of state thinks fit at any time, on the recommendation 
 of the government of any British possession or any foreign state, to add any per- 
 son or persons to any such list, such person or persons shall, until otherwise 
 directed by the Secretary of State, be added to such list, and if there is no such 
 list shall form such list. 
 
 The county court registrar or such other fit person as a secretary of state may 
 from time to time appoint shall be the registrar of tlie court, and shall, on receiving 
 notice of an appeal or a reference from the Board of Trade, immediately summon 
 the court in the prescribed manner to meet forthwith. 
 
 The name of the registrar and his office, together with the rules made under 
 this Act relating to the court of survey, shall l)e published in the prescribed 
 manner. 
 
 8. With respect to the court of survey the following provisions shall hare Power and pro. 
 a- , ^ cedure of court 
 
 ettect : of surrey. 
 
 (1.) The case shall be heard in open court ;
 
 902 
 
 M. S. ACT, 1876, 
 
 Rules for 
 procedure of 
 court of sui- 
 vey, &c. 
 
 Liability of 
 Board of Trade 
 and shipo^\iier 
 for costs and 
 damages. 
 
 Pow er to 
 require from 
 complainant 
 security for 
 
 costs. 
 
 (2.) The judge and each assessor may survey the ship, and shall have for the 
 
 purposes of tliis Act all tlie powers of an inspector appointed by the 
 
 Board of Trade under the M. 8. Act, 1854 ; 
 (3.) The judge may appoint any competent person or persons to sur\'ey the ship 
 
 and report thereon to the court ; 
 (4.) The judge shall have the same jjower as the Board of Trade have to order 
 
 the ship to be released or tinally detained, but unless one of the assessors 
 
 conciirs in an order for the detention of the shij), the ship shall be 
 
 released ; 
 (5.) The owner and master of the ship and any person appointed by the owner 
 
 or master, and also any person appointed by the Board of Trade, may 
 
 attend at any inspection or survey made in j^ursnance of this section ; 
 (6.) The judge shall send to the Board of Trade the prescribed report, and each 
 
 assessor shall eitlier sign the rejjort or report to the Board of Trade the 
 
 reasons for his dissent. 
 
 9. The Lord Chancellor of Great Britain may from time to time (with the con- 
 sent of the Treasury so far as relates to fees) make, and when made revoke, alter, 
 and add to general rules to carry into effect the provisions of this Act with respect 
 to a court of survey, and in particular Avith respect to the summoning of and pro- 
 cedure before the court, the requiring on an appeal security for costs and damages, 
 the amoimt and application of fees, and the publication of the rules. 
 
 All such rules while in force shall have effect as if enacted in this Act, and the 
 expression "prescribed" in the provisions of this Act relating to the detention of 
 ships or court of siu-vey means prescribed by such rules. 
 
 10. If it appears that there was not reasonable and probable cause, by reason of 
 the condition of the ship or the act or default of the owner, for the pro^dsional 
 detention of the ship, the Board of Trade shall be liable to pay to the owner of 
 the ship his costs of and incidental to the detention and survey of the ship, and 
 also compensation for any loss or damage sustained by liim by reason of the 
 detention or survey. 
 
 If a ship is finally detained under this Act, or if it appears that a ship pro- 
 visionally detained was, at the time of such detention, unsafe within the meaning 
 of this Act, the owner of the ship shall l)e liable to pay to the Board of Trade their 
 costs of and incidental to the detention and survey of the ship, and those costs 
 shall, without prejudice to any other remedy, be recoverable as salvage is re- 
 coverable. 
 
 For the ])urposes of this Act the costs of and incidental to any proceeding before 
 a court of survey, and a reasonable amount in respect of the remuneration of the 
 surveyor or officer of the Board of Trade, shall be deemed to be part of the costs 
 of the detention and siin'ey of the ship, and any dispute as to the amount of costs 
 under this Act may be referred to one of the masters or registrars of the Supreme 
 Court of Judicature, who, on rec^uest made to him for that purj^ose by the Board 
 of Trade, shall ascertain and certify the proper amount of snch costs. 
 
 An action for any costs or compensation payable by the Board of Trade under 
 this section may be brought against the secretary thereof by his olficial title as if 
 he were a corporation sole ; and if the cause of action arises in Ireland, it shall be 
 lawful for any of the superior courts of common laAV in Ireland in which such 
 action may be conmienced to order that the summons or Avrit may be served on 
 the crown and treasiuy solicitor for Ireland, in such manner and on such terms as 
 to extension of time and otherwise as to the court shall seem tit, and that such ser- 
 vice shall be deemed good and sufficient service of such summons or Avrit upon the 
 secrelaiy of the Board of Trade. 
 
 11. Where a complaint is made to the Board of Trade or a detaining officer that 
 a British ship is unsafe, the board or officer mav, if thev or he think fit, require 
 the complainant to give security to the satisfaction of the board for the costs and 
 compensation wliich he may l:)ecome lialsle to pay as hereinafter mentioned. 
 
 ProAided that Avhere the complaint is made liy one fourth, being not less than 
 three, of the seamen belonging to the ship, and is not in the opinion of the board 
 or olficer frivolous or vexatious, such security shall not be reriuired, and the board 
 or officer shall, if the complaint is made in .sufficient time before the sailing of the 
 ship, take proper steps for ascertaining whether the sliip ought to be detained 
 imder tliis Act, ^ °
 
 39 & 40 VTCT. c. 80. 903 
 
 Where a sliip is detained in consequence of any complaint, and the circum- 
 stances are such that the Board of Trade are liable under this Act to pay to the 
 owner of the ship any costs or compensation, the complainant shall be liable to 
 pay to the Board of trade all such costs and compensation as the board incur or 
 are liable to pay in respect of the detention and survey of the ship. 
 
 12. (1.) A detaining officer shall have for the purpose of liis duties under this Supplemental 
 Act the same powers as an inspector appointed by the Board of Trade ^q ^rtentiorf 
 under the M. S. Act, 1854. of ship. 
 
 (2.) An order for the detention of a sliip, provisional or final, and an order 
 varying the same, shall be served as soon as may be on the master of the 
 ship. 
 
 (3.) When a ship has been detained under this Act she shall not be released by 
 reason of her British register being subsequently closed. 
 
 (4.) For the purposes of a survey of a ship imder this Act any person authorised 
 to make the same may go on board the ship and inspect the same and every 
 part thereof, and the machinery, equipments, and cargo, and may require 
 the unloading or removal of any cargo, ballast, or tackle. 
 
 (5.) The provisions of the M. S. Act, 1854, with respect to persons who wilfully 
 impede an inspector, or disobey a requisition or order of an inspector, 
 shall apply as if those provisions were herein enacted, with the substi- 
 tution for the inspector of any judge, assessor, officer, or surveyor who 
 under this Act has the same powers as an inspector or has authority to 
 survey a ship. 
 
 Foreign Slni:is, Overhadinc/. 
 
 13. Where a foreign ship has taken on board all or any part of her cargo at a Application 
 port in the U. K., and is whilst at that port imsafe by reason of overloading or ships of pro- 
 improper loading, the provisions of this Act with respect to the detention of visions as to 
 ships shall apply to that foreign ship as if she were a British ship, with the follow- ^^letentiou. 
 ing modifications : 
 
 (1.) A copy of the order for the provisional detention of the ship shall be forth- 
 with served on the consular officer for the state to Avhich the ship 
 belongs at or nearest to the place where the ship is detained : 
 (2.) Where a ship has been provisionally detained, the consular officer, on the 
 request of the owner or master of the ship, may require that the person 
 appointed by the Board of Trade to survey the ship shall be accompanied 
 by such person as the consular officer may select, and in such case, if the 
 surveyor and such person agree, the Board of Trade shall cause the ship 
 te be detained or released accordingly, but if they differ, the Board of 
 Trade may act as if the requisition had not l^een made, and the owner 
 and master shall have the appeal to the court of survey touching the 
 report of the surveyor which is before provided by this Act ; and 
 (3.) Where the owner or master of the ship appeals to the court of survey, the 
 consular officer, on the request of such owner or master, may appoint any 
 competent person who shall be assessor in such case in lieu of the 
 assessor who, if the sliip were a British ship, would be appointed otlier- 
 wise than by the Board of Trade. 
 In this section the expression " consular officer " means any consul-general, vice- 
 consul, consular agent, or other officer recognised by a secretary of statej as a 
 consular officer of a foreign state. 
 
 Appeal on Refusal of certain Certificates to Ships.. 
 
 14. Whereas by section 309 of the M. S. Act, 1854, and enactments amending Appeal on 
 the same, the owner of a passenger steamer as defined in that Act is required to I'cfusai of 
 cause the same to be surveyed by a shipwright surveyor and an engineer surveyor, tfficates*^'^'^' 
 and those surveyors are required to give declarations of certain particiilars with under M. S and
 
 904 
 
 M. S. ACT, 1876, 
 
 Passengers 
 Acts. 
 
 respect to the sufficiency or conforraitj^ witli the Act of the ship and equipments' 
 and to the limits beyond which the ship is not fit to ply, and to the number of 
 passengers which the ship is fit to carry, and of other particulars in the said section 
 mentioned, and the Board of Trade, under section 312 of the same Act, issue a cer- 
 tificate upon such declarations, and the passenger steamer cannot lawfully proceed 
 to sea without obtaining such certificate ; 
 
 And whereas under sections 11 and 50 of the Passengers Act, 1855, and the 
 enactments amending the same, a passenger ship within the meaning of those 
 sections (in this Act referred to as an emigrant ship) cannot lawfully proceed to 
 sea without a certificate of clearance from an emigration officer, or other officer in 
 those sections mentioned, showing that all the requirements of the said sections 
 and enactments have been complied with, and that the ship is in the officer's 
 opinion seaworthy, and that the passengers and crew are in a fit state to proceed 
 to sea, and other'W'ise as therein mentioned ; 
 
 And whereas by section 30 of the M. S. Act Amendment Act, 1862, provision is 
 made for preventing a ship from proceeding to sea in certain cases without a cer- 
 tificate from a surveyor or person appointed by the Board of Trade to the efl'ect 
 that the ship is properly provided with lights, and with the means of making fog 
 signals ; 
 
 And whereas it is expedient to give in the said cases such appeal as hereinafter 
 mentioned : be it therefore enacted that — 
 If a shipowner feels aggrieved, 
 (1). by a declaration of a shipwright surveyor or an engineer surveyor 
 respecting a passenger steamer under the above-recited enactments, or 
 by the refusal of a surveyor to jjive the said declaration ; or 
 (2.) by the refusal of a certificate of clearance for an emigrant ship under the 
 
 above-recited enactments ; or 
 (3.) by the refusal of a certificate as to lights or fog signals under the above- 
 recited enactment, 
 the owner may appeal in the prescribed manner to the court of survey for the poi-t 
 or district where the ship for the time being is. 
 
 On such appeal the judge of the court of survey shall report to the Board of Trade 
 on the question raised by the appeal, and the Board of Trade, when satisfied that 
 the requirements of the report and the other provisions of the said enactments have 
 been complied with, may, — 
 
 (1.) In the case of a jjassenger steamer give their certificate under section 312 
 
 of the M. S. Act, 1854, and 
 (2.) In the case of an emigrant ship give, or direct the emigration or other 
 officer to give, a certificate of clearance under the above-mentioned enact- 
 ments, and 
 (3.) In the case of a refusal of a certificate as to lights or fog signals, give or 
 direct a surveyor or other person appointed by them to give « certificate 
 under section 30 of the M. S. Act Amendment Act, 1862. 
 Subject to any order made by the judge of the court of survey, the costs of and 
 incidental to an appeal under this section shall follow the event. 
 
 Subject as aforesaid, the provisions of this Act with respect to the court of 
 survey and appeals thereto, so far as consistent with the tenour thereof, shall 
 apply to tlie court of survey when acting under this section, and to appeals under 
 this section. 
 
 Where the survey of a ship is made for the purpose of a declaration or certifi- 
 cate under the above-recited enactments, the person appointed to make the survey 
 shall, if so required by the owner, be accompanied on the survey by some person 
 appointed by the owner, and in such case, if the said two persons agree, there shall 
 be no appeal to the court of survey in pursuance of this section. 
 
 Scientific Referees, 
 
 Reference in 
 difficult cases 
 to scientific 
 persons. 
 
 15. If the Board of Trade are of opinion that an appeal under this Act involves 
 a question of construction or design or of scientific difficulty or important prin- 
 ciple, they may refer the matter to such one or more out of a list of scientific
 
 89 & 40 viOT. c. 80. 905 
 
 referees from time to time appro^^ed by a secretary of state, af? may appear to 
 possess the special qualifications necessary for the particular case, and may be 
 selected by agreement between the Board of Trade and the appellant, or in 
 default of any such agreement by a secretary of state, and thereupon the appeal 
 shall be determined liy the referee or referees, instead of by the court of survey. 
 
 The Board of Trade, if the appellant in any appeal so require and give security 
 to the satisfaction of the board to pay the costs of and incidental to the reference, 
 shall refer that appeal to a referee or referees so selected as aforesaid. 
 
 The referee or referees shall have the same powers as a judge of the court of 
 survey. 
 
 Passenger Steamers and Emigrant Shi2}s. 
 
 16. Any steamshii? may carry passengers not exceeding 12 in number although Exemption 
 she has not been surveyed by the Board of Trade as a passenger steamer, "teamers^ 
 and does not carry a Board of Trade certificate as provided by the M. S. Act, ifrom pas- 
 
 1854, witli respect to passenger steamers. senger certifl- 
 
 17. Where the legislature of an}^ British possession provides for the survey of ' ". 
 and grant of certificates for passenger steamers, and the Board of Trade report to certificates 
 H. M. that they are satisfied that the certificates are to the like effect, and are for passenger 
 granted after a like survey, and in such manner as to be equally efficient with the '^'^eamera. 
 certificates granted for the same purpose in the U. K. under the Acts relating to 
 Merchant Shipping, it shall be lawful for H. M, by Order in Council — 
 
 1. To declare that the said certificates shall be of the same force as if they had 
 
 been granted under the said Acts ; and 
 
 2. To declare that all or any of the provisions of the said Acts whicli relate to 
 
 certificates granted for passenger steamers under those Acts shall, either 
 without modification or with such modifications as to H. M. may seem 
 necessary, apply to the certificates referred to in the order ; and 
 
 3. To impose such conditions and to make such regulations with respect to the 
 
 said certificates, and to the use, delivery, and cancellation thereof, as to 
 H. M. may seem fit, and to impose penalties not exceeding £50 for the 
 breach of such conditions and regulations. 
 
 18. In every case where a passenger certificate has been granted to any steamer Provision' 
 
 by the Board of Trade under the provisions of the M. S. Act, 1854, and remains against double 
 still in force, it shall not be requisite for the purposes of the employment of such ^^^11% jias- 
 steamer under the Passengers Acts that she shall be again surveyed in her hull and senger steamers 
 machinery in order to qualify her for service under the Passengers Act, 1855, and "i"f ,s '^'^^'^'' 
 the Acts amending the same ; Ijut for the purposes of employment under those 
 Acts such Board of Trade certificate shall be deemed to satisfy the requirements of 
 the Passengers Acts with respect to such survey, and any further survey of the 
 hull and machinery shall be dispensed with, and so long as a steamship is an 
 emigrant ship that is a passenger ship within the meaning of the Passengers Act, 
 
 1855, and the Acts amending the same, and the provisions contained in the said 
 Passengers Acts as to the survey of her hull, machinery, and equipments have been 
 complied with, she shall not be subject to the provisions of the M. S. Act, 1854, 
 with respect to the survey of and certificate for passenger steamers, or to the 
 enactments amending the same. 
 
 19. Where a foreign ship is a passenger steamer subject to the ]\I. S. Act, 1854, Provision as 
 and the Acts amending the same, or an emigrant ship subject to the Passengers w survey of 
 Act, 1855, and the Acts amending the same, and tlie Board of Trade are satisfied, gen^rfi^steamcr 
 by the production of a foreign certificate of survey attested by a British consular or emigrant 
 officer at the port of survey, that such ship has been officially surveyed at a foreign '^'"^^" 
 
 port, and are satisfied that the i-equirements of the said Acts, or any of them, are 
 proved by such survey to have been substantially complied with, the board may, 
 if they think fit, dispense with any further survey of the ship in respect of the 
 requirements so complied with, and give or direct one of their officers to give a 
 certificate, which shall have the same efl'ect as if given iqjon survey under the 
 sakl Acts or any of them : Provided that H. M. may by Order iu Council direct
 
 906 
 
 M. S. ACT, 1876, 
 
 Power to 
 modify Pas- 
 sengers Acts 
 as to food, 
 space, aud 
 accommoda- 
 tion in emi- 
 grant ships. 
 
 Provision 
 of signals 
 of distress, 
 inextinguish- 
 able lights, 
 and Ufc buoys 
 in passenger 
 steamers aud 
 emigrant 
 ships. 
 
 that this section shall not apply in the case of an official survey at any foreign 
 port at whiclt it appears to H. M. that corresponding provisions are not extended 
 to British ships. 
 
 20. It shall be lawful for the Board of Trade, if satisfied that the food, space, 
 accommodation, or any other particular or thing provided in an emigrant ship 
 for any class of passengers is superior to the food, space, accommodation, or other 
 particular or thing required by the Passengers Act, 1855, and the Acts amending 
 the same, to exempt such ship from any of the requirements of those Acts Avith 
 respect to food, space, or accommodation, or other j)articular or thing, in such 
 manner aud upon such conditions as the Boai'd of Trade may think fit. 
 
 21. Every sea-goiaig passenger steamer and every emigrant shij) shall be pro- 
 vided to the satisfaction of the Board of Trade — 
 
 (1.) With means for making the signals of distress at night specified in the First 
 Schedule to " The M. S. Act, 1873," or in any rules substituted therefor, 
 including means of making flames on tlie ship which are inextinguishable 
 in water, or such other means of making signals of distress as the Board 
 of Trade may previously approve ; and 
 (2.) With a proper supply of lights inextinguishable in water and fitted for 
 
 attachment to life buoys. 
 If any such steamer or ship goes to sea from any port of the U. K. without being 
 so provided as required by this section, for each default iu any of the above 
 requisites the owner shall, if he appears to be in fault, incur a penalty not exceed- 
 ing ^100, and the master shall, if he appears to be in fault, incur a penalty not 
 exceeding £50. 
 
 Grain Cargoes (a). 
 
 Stowage of 
 cargo of 
 grain, &;c. 
 
 22. Xo cargo of wlaich more than one-third consists of any kind of grain, corn 
 rice, paddy, pulse, seeds, nuts, or nut kernels, hereinafter referred to as " grain 
 cargo," shall be carried on board any British ship, unless such grain cargo be con- 
 tained in bags, sacks, or barrels, or secured from shifting by boards, bulkheads 
 or otherwise. 
 
 If the managing owner or master of any British ship, or any agent of such 
 owner who is charged vdth the loading of the ship or the sending her to sea, knoAV- 
 ingly allows any grain cai'go or part of a grain cargo to be shipped therein for 
 carriage contrary to the j)rovisions of this section, he shall for every such offence 
 inciu' a penalty not exceeding £300, to be recovered uj)on summary conviction. 
 
 Deck Cargoes (h). 
 
 Space occupied 
 by deck 
 cargo to be 
 liable to dues. 
 
 23. If any ship, British or foreigm, other than home trade ships as defined l)y 
 the M. S. Act, 1854, carries as deck cargo, that is to say, in any uncovered space 
 upon deck, or in any covered space not included in the cubical contents forming 
 the ship's registered tonnage, timber, stores, ov other goods, all dues payable on 
 the ship's tonnage shall be payable as if there were added to the ship's registered 
 tonnage the tonnage of the space occupied by such goods at the time at which 
 such dues become payable. 
 
 The space so occupied shall be deemed to be the space limited by the area 
 occupied by the goods and by straight lines inclosing a rectangular space sufficient 
 to include the goods. 
 
 The tonnage of such space shall be ascertained by an officer of the Board of 
 Trade or of Customs, in manner directed by sub-section 4 of section 21 of tlie 
 M. S. Act, 1854, and when so ascertained shaU be entered by him in the ship's, 
 official log book, and also in a memorandimi which he shall deliver to the master, 
 and the master shall, when the said dues are demanded, produce such memo- 
 
 (a) Sec 43 & 44 Tict. c. 4d,post, p. 927. 
 
 (6) Sec s. 44, iwsi, p. 914.
 
 39 & 40 VICT. c. 80. 907 
 
 randum in like manner as if it were the certificate of registry, or, in tlie case of a 
 foreign ship, the document equivalent to a certificate of registry, and in default 
 shall he liahle to the same i^enalty as if lie had failed to produce the said certificate 
 or document. 
 
 24. After the 1st day of November, 1876, if a ship, British or foreign, arrives penalty for 
 between the last day of October and the 16th day of April in any year at any port carrying 
 in the U. K. from any port out of the U. K., carrying as deck cargo, that is to y^^ber in^ °^ 
 say, in any uncovered space upon deck, or in any covered space not included in winter, 
 the cubical contents forming the ship's registered tonnage, any wood goods coming 
 within the following descriptions ; that is to say, 
 
 (a.) Any square, round, waney, or other timber, or any pitch pine, mahogany, 
 
 oak, teak, or other heavy wood goods whatever ; or 
 (5.) Any more than 5 spare spars or store spars, whether or not made, dressed, 
 
 and finally prepared for use ; or 
 (c.) Any deals, battens, or other light wood goods of any description to a height 
 exceeding 3 feet above the deck ; 
 the master of the ship, and also the owner, if he is privy to the offence, shall be 
 liable to a penalty not exeeeding £5 for every 100 cubic feet of wood goods carried 
 in contravention of this section, and such penalty may be recovered by action or 
 on indictment or to an amount not exceeding £100 (whatever may be the maximum 
 penalty recoverable) on sunuuary conviction. 
 
 Provided that a master or owner shall not be liable to any penalty under this 
 section, — 
 
 (1.) In respect of any wood goods Avhich the master has considered it necessary 
 to place or keep on deck during the voyage on account of the springing 
 of any leak, or of any other damage to the ship received or appre- 
 hended; or 
 (2.) If he proves that the ship sailed from the port at which the wood goods 
 were loaded as deck cargo at such time before the last day of October as 
 allowed a sulficient interval according to the ordinary duration of tlie 
 voyage for the ship to arrive before that day at the said port in the 
 U. K., but was prev'ented from so arriving by stress of weather or cir- 
 cumstances beyond his control ; or 
 (3.) If he proves that the ship sailed from the port at which the wood goods 
 were loaded as deck cargo at such time before the 16th day of April as 
 allowed a reasonable interval according to the ordinary duration of the 
 voyage for the ship to arriA^e after that day at the said port in the U. K., 
 and by reason of an exceptionally favourable voyage arrived before that 
 day. 
 Provided further, that nothing in this section shall afiect any ship not bound to 
 any port in the U. K. which comes into any port of the U. K. under stress of 
 weather, or for repairs, or for any other purpose than the delivery of her cargo. 
 
 Deck and Load Lines. 
 
 25. Every British ship (except ships under 80 tons register employed solely in Markinf? of 
 the coasting trade, ships employed solely in fishing, and pleastu'e yachts) shall be deck-lines. 
 permanently and conspicuously marked Avith lines of not less than 12 inches in 
 
 length and one inch in breadth, painted longitudinally on each side amidships, 
 or as near thereto as is practicable, and indicating the position of each deck which 
 is above water. 
 
 The upper edge of each of these lines shall be level with the upper side of the 
 deck plank next the waterway at the place of marking. 
 
 The lines shall be Avhite or yellow on a dark ground, or black on a light ground. 
 
 26. With respect to tlie marking of a load-line on British ships the folloAving Martin"- of 
 provisions shall have eft'ect : load-line on 
 
 (1.) The owner of every British ship (except ships under 80 tons register Bri^ifh'iiip'l 
 employed solely in the coasting trade, ships emploj'ed solely in fishing, 
 and pleasure yachts) shall, Ijefore entering his sliip outwards from any 
 port in the U. K. upon any voyage for which he is required so to enter
 
 908 
 
 M. S. ACT, 1876, 
 
 Mai'king of 
 load-line iu 
 case of coasting 
 vessels. 
 
 Penalty for 
 offences in 
 relation to 
 marks on 
 ships. 
 
 her, or, if that is not practicable, as soou after as may be, mark upon 
 each of her sides amidship, or as near thereto as is practicable, in white 
 or yellow on a dark ground, or in black on a light ground, a circular 
 disc 12 inches in diameter, with a horizontal line 18 inches in length 
 drawn through its centre : 
 
 (2.) The centre of this disc shall indicate the maximum load-line in salt water 
 to Avhich the owner intends to load the ship for that voyage : 
 
 (3.) He shall also, upon so entering her, insert in the form of entry delivered to 
 the collector or other principal olhcer of customs a statement in writing 
 of the distance in feet and inches between the centre of this disc and the 
 upper edge of each of the lines indicating the position of the ship's decks 
 which is above that centre : 
 
 (4.) If default is made in delivering this statement in the case of any ship, any 
 officer of customs may refuse to enter the ship outAvards : 
 
 (5.) The master of the ship shall enter a copy of this statement in the agree- 
 ment with the crew before it is signed by any member of the crew, and 
 no superintendent of any mercantile marine office shall jDroceed with the 
 engagement of the crew until this entry is made : 
 
 (6.) The master of the ship shall also enter a copy of this statement in the oflicial 
 log book : 
 
 (7.) When a sliip has been marked as by this section required, she shall be kept 
 so marked until her next return to a port of discharge in the U. K. 
 
 27. With respect to the marking of a load-line on British ships employed in the 
 coasting trade, the following provisions shall have effect : 
 
 (l.j The owner of every British ship employed in the coasting trade on the 
 coasts of the U. K. (except ships under 80 tons register employed solely 
 in that trade) shall, before proceeding to sea from any port, mark upon 
 each of her sides amidships, or as near thereto as is practicable, in white 
 or yellow on a dark ground, or in lilack on a light ground, a circular 
 disc 12 inches in diameter, ■with a horizontal line 18 inches in length 
 drawn tlirough its centre : 
 
 (2.) The centre of this disc shall indicate the maximum load-line in salt water 
 to which the owner intends to load the sliip, until notice is given of an 
 alteration : 
 
 (3.) He shall also once in every 12 months, immediately before the ship 
 proceeds to sea, send or deliver to the collector or other principal officer 
 of customs of the port of registry of the ship a statement in writing of 
 the distance in feet and inches between the centre of the disc and the 
 upper edge of each of the lines indicating the j)osition of the ship's decks 
 which is above that centre ; 
 
 (4.) The owner, before the ship proceeds to sea after any renewal or alteration 
 of the disc, shall send or deliver to the collector or other principal officer 
 of customs of the port of registry of the ship notice in writing of such 
 renewal or alteration, together with such statement in M'riting as before 
 mentioned of the distance between the centre of the disc and the upper 
 edge of each of the deck-lines : 
 
 (5.) If default is made in sending or deliveruig any notice or statement required 
 by this section to be sent or delivered, the oAvner shall be liable to a 
 penalty not exceeding ^100. 
 
 (6.) When a ship has been marked as by this section required, she shall be kept 
 so marked until notice is given of an alteration. 
 
 28. Any owner or master of a British ship who neglects to cause his ship to be 
 marked as by this Act required, or to keep her so marked, or who allows the ship 
 to be so loaded as to submerge in salt -water the centre of the disc, and any 
 person who conceals, removes, alters, defaces, or obliterates, or suffers any person 
 under his control to conceal, remove, alter, deface, or obliterate, any of the said 
 marks, except in the event of the particulars thereby denoted being lawfully 
 altered, or except for the purpose of escaping capture by an enemy, shall lor each 
 offence incur a penalty not exceeding £100. 
 
 If any of the marks required by this Act is in any respect inaccurate, so as to 
 be likely to mislead, the owner of the ship shall incur a penalty not exceeding £100.
 
 39 & 40 viCT. c. 80. 909 
 
 Investigations into iSliifpincj Casualties, (a) 
 
 29. For tlie purpose of rendering investigations into shipping casualties more 
 speedy and effectual it shall be lawful for the Lord High Chancellor of Great 
 
 Britain to appoint from time to time some tit person or persons to be a wreck Appointment, 
 commissioner or wreck commissioners for the U. K., so that there ^^lall not be duties,^and^^^^^ 
 more than 3 such commissioners at any one time, and to remove any such commLiouers 
 wreck commissioners ; and in case it shall become necessary to appoint a wreck foriavesti- 
 comniissioner in Ireland the Lord Chancellor of Ireland shall have the appoint- casuaffef'^'"^ 
 ment and the power of removal of such wreck commissioner. 
 
 It shall be the duty of a wreck commissioner, at the request of the Board of 
 Trade, to hold any formal investigation into a loss, abandonment, damage, or 
 casualty (in this Act called a shipping casualty) under the 8th part of the M. S. 
 Act, 1854, and for that purpose he shall have the same jurisdiction and powers as 
 are thereby conferred on 2 justices, and all the provisions of the M. S. Acts, 
 1854 to 1876, with respect to investigations conducted under the 8th part of the 
 M. S. Act, 1854, shall apply to investigations held by a wreck commissioner. 
 
 30. The w^reck commissioner, justices, or other authority holding a formal 
 investigation into a shipping casualty shall hold the same with the assistance of 
 
 an assessor or assessors of nautical engineering or other special skill or knowledge, Assessors and 
 to be appointed by the commissioner, justices, or authority out of a list of persons cedm-eon formal 
 for the time being approved for the purpose by a secretary of state. investigations 
 
 The commissioner, justices, or authority, when of opinion that the investigation into shipping 
 is likely to involve the cancellation or suspension of the certificate of a master or ^^^^^^ '®^" 
 mate, shall, where practicable, appoint a person having experience in the merchant 
 service to be one of the assessors {h). 
 
 Each assessor shall either sign the report made on the investigation, or report to 
 the Board of Trade his reasons for his dissent therefrom. 
 
 The Lord High Chancellor of Great Britain may from time to time, with the 
 consent of the Treasury so far as relates to fees, make, and when made revoke, 
 alter, and add to general rules {h) for carrying into effect the enactments relating 
 
 (a) See 42 & 43 Vict. c. 7-2. " Class III.— Royal Navy. 
 
 (b) Rules made by the Lord Chancellor, " Rank of admiral or captain and three 
 dated 20th December, 187!), recite the first years' service in command of one of H. M.'s 
 2 paragraphs in the above section; the ships at sea, or rank of statf commander and 
 42 & 43 Vict. c. 72, sect. 3, sub-sect. 1 ; three years' service in that rank in one of 
 and that the " Secretary of State has H. M.'s ships at sea. 
 
 directed that the assessors shall, so far as 
 
 in his opinion circumstances permit, be " Class IV.— Persons of Nautical Engineer- 
 
 taken in order of rotation within each class ing or other special Skill or Knowledge. 
 
 or sub-cla8!», and has further directed that ui„ \ a. «t, „, „i-c„„f „ • • ii 
 
 the assessor's placed by him on the list of ^""-^ ?,f i^hf t'Sl'? ^^1.^1 ' °P' ■ '? 
 
 assessors on U after' the 3lst of March fortdi^arv a Is '"^'''''*' 
 
 next shall be classified according to their an \ c,;„r^,!oV;Zof-^o= v- +t 
 
 qualifications, as follows:- C^-) ^rtt^tSLTof Itat^r e°q^S 
 
 « QUALIFICATIONS. ™ fo'' fP^cial cases." 
 
 The rules then lurther recite the 42 & 43 
 
 " CLASSES. Vict. c. 72, sect. 3, sub-sects. 2, 3, post,— 
 
 '^ Class I. — Mercantile Marine Masters. and then 
 
 ,,,.,-,. , . , . Under the authority of the above-men- 
 
 (a) Five years' service as a master in tioned Acts, the Lord Chancellor makes the 
 
 the merchant service, of which two following General Rules : 
 years must have been service in 
 
 command of a sailing ship, with a Skort Title. 
 
 certificate of competency. 1. These rules may be cited as " The Ship- 
 
 "(6.) Five years' service as a master in ping Casualties Rules, 1679." ^ 
 
 the merchant service, of which two ^ 
 
 years must have bren service in Commencement. 
 
 command of a steamship, with a ~- These rules shall, subject as hereinafter 
 
 certificate of competency. mentioned, come into operation on the 24th 
 
 day of December, 1879. 
 " Class II. — Mercantile Marine Engineers. 
 
 " Five years' seryice as an engineer in Puhhcation of Rules. 
 
 the merchant service, with a first- 3. These rules shall be published by H. M.'s 
 
 class certificate of competency. Stationery Office through its agents, and a
 
 910 
 
 M. S. ACTj 1876, 
 
 to formal investigations into sMpping casualties, and in particular vdth. respect to 
 the summoning of assessors, the procedure, the parties, the persons allowed to 
 
 copy shall be kept at every ctistom house 
 and mercantile marine office in the U. K., 
 and any person desiring to peruse them there 
 shall be entitled to do so. 
 
 Aiypomtment of Assessors. 
 
 4. The power of appointing- assessors 
 for investigations into shipping casualties 
 shall be vested in the Secretary of State. 
 
 •5 . If any investigation involves, or appears 
 likely to involve, the cancelling or suspen- 
 sion of the certificate of a master, mate, or 
 engineer, then, in order to satisfy the afore- 
 said statutory requirement of not less than 
 two assessors having experience in the mer- 
 chant service, there shall be appointed from 
 the list not less than two assessors from 
 Class I. and Class II., or from either of those 
 classes. 
 
 6. Subject to any special appointment or 
 appointments which the Secretary of State 
 may think it expedient to make in any case 
 ■where special circumstances appear to him 
 to require a departure from these rules (the 
 rejjuirements of Rule 5 being always com- 
 plied with), assessors shall be appointed as 
 follows : 
 
 (1.) Where the investigation involves, or 
 appears likely to involve, the can- 
 celling or suspension of the certi- 
 ficate of a master or mate, but not 
 of an engineer, at least two assessors 
 shall be appointed from Class I. 
 
 (2.) Where the investigation involves, or 
 appears likely to involve, the can- 
 celling or suspension of the certi- 
 ficate of a master or mate of a sail- 
 ing ship, one at least of the assessors 
 shall be appointed from sub-sec- 
 tion (a) of Class I., and where the 
 investigation involves, or appears 
 likely to involve, the cancelling or 
 suspension of the certificate of a 
 master or mate of a steamship one 
 at least of the assessors shall be 
 appomted from from sub-section {b) 
 of Class I. 
 
 (3,) Where the investigation involves, or 
 appears likely to involve, the can- 
 celling or suspension of the certi- 
 ficate of an engineer one at least of 
 the assessors shall be appointed 
 from Class II. 
 
 7. The Board of Trade shall infonn the 
 Secretary for State when assessors are re- 
 quired, and shall state from which of the 
 aforesaid classes assessors ought, in their 
 opinion, to be appointed, in order to give due 
 efi'ect to the aforesaid classification and these 
 rules; but the Board of Trade shall not 
 request the appointment of any individual 
 assessor. 
 
 8. An appointment made by the Secre- 
 tary of State of any assessor or assessors for 
 an investigation shall not be open to ques- 
 tion on the ground that it was not in accord- 
 ance with these rules, or does not give full 
 effect to the requirements of these rules. 
 
 By Rule 9 Rules 5 to 7 (both inclusive) 
 did not come into operation until the 31st of 
 March, 1880. 
 
 Rules made by the Lord Chancellor, dated 
 19th April, 1880, recite 39 & 40 Vict. c. 80, 
 s. 30, and 42 & 43 Vice. c. 72, sect. 3, sub-sect. 
 1, post. 
 
 " And whereas the Secretary of State has 
 directed that the assessors shall so far as in 
 his opinion circumstances permit, be taken 
 in order of rotation within each class or sub- 
 class, and lias further directed that the 
 assessors placed by him on the list of asses- 
 sors shall be classified according to the 
 qualifications set forth in the 'Additional 
 Rules as to Investigations into Shipping 
 Casualties,' dated the 20th day of December, 
 1879. ' 
 
 " And whereas the Secretary of State has 
 further directed that the following qualifi- 
 cations with respect to Class II. mercantile 
 marine engineers sliall be substituted for 
 the qualifications set forth in the said rules, 
 viz. : — 
 
 " QUALIFICATIONS. 
 
 " CLASSES. 
 
 " Class II. — Mercantile Marine Enr/ineers, 
 
 '' Five years' service as an engineer in the 
 merchant service, and at the time of appoint- 
 ment holding a first-class certificate of com- 
 petency as an engineer." 
 
 Under the authority of the above-men- 
 tioned Acts, the Lord' High Chancellor of 
 Great Britain made the tollowing general 
 rules : 
 
 Commencement. 
 
 1. " These rules shall come into operation 
 on the 19th day of April, 1880. 
 
 PvMication of Rules. 
 
 2. "These rules shall be published by 
 H. M.'s Stationery Office through its agents, 
 and a copy shall be kept at every custom 
 house and mercantile marine office in the 
 U. K., and any person desiring to peruse 
 tliem there shall be entitled to do so. 
 
 3. " The Shipping Casualties Rules, 1879, 
 shall be read and construed and shall take 
 effect as if the qualifications above set forth 
 ■with respect to Class II. mercantile marine 
 engineers had been inserted in the said rules 
 in lieu of the qualifications therein speci- 
 fied." 
 
 Rules made by the Lord Chancellor, I7th 
 April, 1880. 
 
 THE MERCHANT SHIPPING ACT, 1876, 
 39 & 40 Vict. c. 80. 
 
 THE SHIPPING CASUALTIES INVES- 
 TIGATIONS ACT, 1879, 42 & 43 Vict. 
 c. 72. 
 
 Under the authority of the above-men- 
 tioned Acts, the Lord" High Chancellor of 
 
 t 
 
 A
 
 39 & 40 VICT. c. 80, 
 
 911 
 
 appear, tlie notice to such parties and persons or to persons affected, and the amount 
 and application of fees. 
 
 Great Britain, made the following general 
 rules : — 
 
 Short Title. 
 
 1. "These rules may be cited as "The 
 Shipping Casualties (Appeal and Rehearing) 
 Rules, 1880." 
 
 Commencement. 
 
 2. " These rules shall come into operation 
 on the 21st day of April, 1880." 
 
 Interpretation. 
 
 3. " In the construction of these rules the 
 word "judge " shall mean the wreck com- 
 missioner, stipendiary magistrate, justices, 
 or other authority empowered to hold an 
 investigation into the conduct of a master, 
 mate, or engineer, or into a shipping casu- 
 alty." 
 
 Pullication of Fades. 
 
 4. " These rules shall be published by 
 H. M.'s Stationery Office, through its agents, 
 and a copy shall be kept at every custom 
 house and mercantile marine office in the 
 U. K., and any person desiring to peruse 
 them there shall be entitled to do so." 
 
 Copy of Report ivliere Certificate affected. 
 
 5. "Where the certificate of a master, 
 mate, or engineer has been cancelled or sus- 
 pended, the Board of Trade shall, on appli- 
 cation by any party to the proceedings, give 
 him a copy of the report made to the 
 board." 
 
 Appeal. 
 
 6. " Every appeal under section two of 
 'The Shipping Casualties Investigations 
 Act, 1879,' shall be subject to the conditions 
 and regulations following, namely : — 
 
 " (a.) The appellant shall, within seven 
 days after the day on which the deci- 
 sion appealed against is pronounced, 
 serve on such of the other parties 
 to the proceedings as he may con- 
 sider to be directly affected by the 
 appeal, notice of his intention to 
 appeal, and shall also, within two 
 days after the appeal is set down, 
 serve on the said parties notice of 
 the general grounds of the appeal. 
 
 " (i.) If the appeal is brought by any party 
 other than the Board of Trade, the 
 appellant shall give such security, 
 if any, by deposit of money or other- 
 wise, for the costs to be occasioned 
 by the appeal, as the judge from 
 whose decision the appeal is brought, 
 on application made to him for that 
 purpose, may direct. 
 
 " (c.) The appellant shall , before the expira- 
 tion of the time within which notice 
 of appeal may be given, leave with 
 the officer for the time being ap- 
 pointed for tliat purpose by the 
 court to which the appeal is brought 
 
 (in these rules referred to as the 
 Court of Appeal) a copy of the 
 notice of appeal, and the officer shall 
 thereupon set down the appeal by 
 enterhig it in the proper list. 
 
 " {d.) The Court of Appeal shall be assisted 
 by not less than two assessors, to be 
 selected, in the discretion of the 
 court, having regard to the nature of 
 each case, from either or both of the 
 following classes : — 
 "1. Elder Brethrenof the Trinity House. 
 "2. Persons approved from time to time 
 by the Secretary of State as asses- 
 sors for the purpose of formal inves- 
 tigations into shipping casualties, 
 under section .30 of 'The M. S. Act, 
 1876,' and sub-section 1 of section 3 
 of the ' Shipping Casualties Inves- 
 tigations Act, 1879.' 
 
 " (e.) The Court of Appeal may, if it thinks 
 fit, order any other person or per- 
 sons, body or bodies, other than the 
 parties served with the notice of 
 appeal, to be added as a party or 
 pai'ties to the proceedings for the 
 purposes of the appeal, on such 
 terms with respect to costs and 
 otherwise as to the Court of Appeal 
 seems meet. 
 
 " (/. ) Any party to the proceedings may 
 object to the appearance on the 
 appeal of any other party to the 
 proceedings as unnecessary. 
 
 "(g.) The evidence taken before the judge 
 from whose decision the appeal is 
 brought shall be proved before the 
 Court of Appeal by a copy of the 
 notes of the judge, or of the short- 
 hand writer, clerk, secretary, or 
 other person authoi'ised by him to 
 take down the evidence, or by such 
 other materials as the Court of Ap- 
 peal thinks expedient; and a copy of 
 the evidence, and of the report to 
 the Board of Trade containing the 
 decision from which the appeal is 
 brouglit, and of the notice of the 
 general grounds of the appeal, shall 
 be left with the officer for the time 
 being appointed for that purpose by 
 the Court of Appeal before the ap- 
 peal comes on for hearing. For the 
 purpose of this rule, copies of the 
 notes of the evidence, and of the 
 report, shall be supplied to the 
 appellant on request, by the judge 
 or other person having charge 
 thereof, on payment of the usual 
 charge for copying. 
 
 " (A.) The Court of Appeal shall have full 
 power to receive further evidence on 
 questions of fact, sucli evidence to 
 be either by oral examination in 
 court, by affidavit, or by deposition 
 taken before an examiner or commis- 
 sioner. Evidence may also be given 
 with special leave of the Court of 
 Appeal as to matters which have
 
 912 
 
 M. S. ACT, 1876, 
 
 Power for 
 wreck com- 
 missioner to 
 institute 
 examination 
 with respect 
 to ships in 
 distress under 
 17 & 18 Vict. 
 C. 104, s. 448. 
 Power to hold 
 inquiries or 
 formal investi- 
 gations as to 
 .stranded and 
 missing 
 ships (n). 
 
 Place of 
 investigation 
 
 All i?ucli nile.s, while in force, shall have effect as if euacted in this Act. 
 
 Every formal investigation into a shipping casnalty shall be condncted m such 
 manner that if a charge is made against any person that person shall have an 
 opportunity of making a defence. 
 
 31. A wreck commissioner may, at the request of the Board of Trade, hy him- 
 self, or by some deputy approved by the Board of Trade, institute the same 
 examination as a receiver of wreck under section 448 of the Merchant Shipping 
 Act, 1854, and shall for that purpose have the powers by that section conferred on 
 a receiver of wreck. 
 
 32. In the following cases- - 
 
 (1.) "Whenever any .ship on or near the coasts of the U. K. or any British ship 
 
 elsewhere has been stranded or damaged, and any witness is found at any 
 
 place in the U. K., or 
 (2.) Whenever a British ship has been lost or is supposed to have been lost, and 
 
 any evidence can be obtained in the U. K. as to the circumstances under 
 
 which she proceeded to sea or was last heard of, 
 the Board of Trade (without prejudice to any other powers) may, if they think 
 fit, cause an incpiiry to be made or formal investigation to be held, and all the 
 provisions of the M. S. Acts, 1854 to 1876, shall apply to such incjuiry or invest!- 
 gation as if it had been made or held under the 8th part of the M. S. Act, 
 1854. 
 
 33. A formal investigation into a shipping casualty may be held at any place 
 appointed in that behalf by the Board of Trade, and all enactments relating to the 
 authority holding the investigation shall, for the purpose of the investigation, have 
 effect as if the place so appointed were a place appointed for the exercise of the 
 ordinary jurisdiction of that authority. 
 
 Miscellaneous. 
 
 Enforcing 
 detention of 
 ship. 
 
 34. Where under the M. S. Acts, 1854 to 1876, or any of them, a ship is 
 authorized or ordered to l>e detained, any commissioned officer on full pay in the 
 naval or military service of H. M., or any officer of the Board of Trade or Customs, 
 or any British consular officer may detain the ship, and if the ship after such 
 detention or after ser-sdce on the master of any notice of or order for such detention 
 
 occurred since the date of the deci- 
 sion from which the appeal is 
 brought. 
 
 " ( i.) The Court of Appeal shall have power 
 to make such order as to the whole 
 or any part of the costs of and 
 occasioned by the appeal as may 
 seem just. 
 
 " (j.) Subject to the foregoing provisions of 
 this rule, every appeal shall be con- 
 ducted under and in accordance with 
 the general rules and regulations 
 applicable to ordinary proceedings 
 before the Court of Appeal to which 
 it is brought ; but there shall nut be 
 anything in the nature of pleadings, 
 otlier than the notice of the general 
 grounds of the appeal, except by 
 special permission of the Court of 
 Appt-al. 
 
 " (l:) On the conclusion of an appeal, the 
 Court of Appeal shall send to the 
 Board of 1 rade a report of the case, 
 similar to that required to be sent 
 by the judge from whose decision 
 the appeal is brought. 
 
 Rehearings by Order of Board of Trade. 
 
 " 7. (a.) Where the Board of Trade direct a 
 rehearing under section 2 of the 
 " Shipping Casualties Investiga- 
 tions Act, 1879," they shall cause 
 such reasonable notice to be given to 
 the parties whom they consider to 
 be affected by the rehearing as the 
 circumstances of the case may, in 
 the opinion of the Board of Trade, 
 permit. 
 " (i.) The provisions distinguished as (d), 
 (e), if), (.9), (/<). (0, 0), and (X-) of 
 the last foregoing rule shall apply 
 to a rehearing as it it were an ap- 
 peal, and as if the court or autho- 
 rity before whom the rehearing 
 takes place were the Court of Ap- 
 peal." 
 (a) Where an inquiry into the stranding 
 of a ship Avhere no damage has been done is 
 held by a wreck commissioner under this 
 section he has no jurisdiction upon such 
 inquiry to suspend the certificate of the 
 master of the stranded ship. £.rp. Story, 
 47 L. J. Q. B. 266.
 
 39 & 40 Vict. c. 80. 913 
 
 proceeds to sea before it is released by competent autbority, tbe master of tbe ship 
 and also tbe owner, and any person wbo sends tbe ship to sea, if sucb owner or 
 person be party or privy to tbe offence, shall forfeit and pay to H. M. a penalty 
 not exceeding £100. 
 
 Where a ship so proceeding to sea takes to sea when on board thereof in tbe 
 execution of bis duty any officer authorized to detain the ship, or any surveyor or 
 officer of the Board of Trade or Customs, tbe owner and master of tbe ship shall 
 each be liable to pay all expenses of and incidental to tbe officer or surveyor being 
 so taken to sea, and also a penalty not exceeding £100, or, if tbe offence is not 
 prosecuted in a summary manner, not exceeding £10 for every day until tbe 
 officer or surveyor returns, or until such time as Avould enable him after leaving 
 the ship to return to tbe port from which be is taken, and such expenses may be 
 recovered in like manner as tbe penalty. 
 
 35. Where any order, notice, statement, or document requires, for tbe purpose Sei-vice of 
 of any provision of this Act, to be served on the master of a sliip, the same shall master°&c 
 be served, where there is no master, and the ship is in tbe U. K., on the managing 
 
 owner of the ship, or if there is no managing owner, on some agent of the owner 
 residing in the U. K., or where no such agent is knoAra or can be found, by affixing 
 a copy thereof to the mast of the ship. 
 
 Any such order, notice, statement, or document may be served by delivering a 
 copy thereof personally to the person to be served, or by leaving the same at bis 
 last place of abode, or in the case of a master by leaving it for him on board the 
 ship with the person being or appeai'ing to be in command or charge of sucb 
 ship. 
 
 Any 25erson who obstructs the service of any order, notice, statement, or docu- 
 ment on the master of a ship shall incur a penalty not exceeding £10, and if tbe 
 owner or master of the ship is j)arty or privy to sucb obstruction be shall be guilty 
 of a misdemeanor. 
 
 36. Tbe name and address of the managing owner for the time being of every ship's 
 British ship registered at any port or place in tbe U. K. shall be registered at tbe managing; 
 custom house of tbe ship's port of registry. rnima'^er^be 
 
 Where there is not a managing owner there shall be so registered the name of registered. 
 the ship's husband or other person to whom the management of the ship is entrusted 
 by or on behalf of tbe owner ; and any person whose name is so registered shall, 
 for tbe pttrposes of the M. S. Acts, 1854 to 1876, be under the same obligations, 
 and subject to tbe same liabilities, as if he were the managing O'wner. 
 
 If default is made in complying with this section the owner shall be liable, or 
 if there be more owners than one each owner shall be liable in proportion to his 
 interest in the ship, to a penalty not exceeding in the whole £100 each time tbe 
 ship leaves any port in the U. K. 
 
 37. Whenever it lias been made to appear to H. M. that the Government of Power for 
 any Foreign State is desirous that any of the provisions of tbe M. S. Acts, 1854 to ?: ?^; P"^ 
 1876, or of any Act hereafter to be passed amending the same, shall apply to the counc/ito 
 ships of sucb State, H. M. may by Order in Council declare that sucb of tbe said apply certain 
 provisions as are in such Order specified shall (subject to tbe limitations, if any, M°s'Actsto 
 contained in tbe Order) apply, and thereupon, so long as tbe Order remains in foreign ships, 
 force, such provision shall apply (subject to the said limitations) to the ships of 
 
 such State, and to tbe owners, masters, seamen, and apprentices of such shijDs, 
 when not locally Avitbin tbe jurisdiction of sucb State, in the same manner in all 
 respects as if sucb ships were British ships. 
 
 38. Where H. M. has power under the M. S. Act, 1854, or any Act passed or Provision as 
 hereafter to be passed amending tbe same, to make an Order in Council, it shall to Order in 
 be lawful for H. M. from time to time to make such Order in Council, and by Couucd. 
 Order in Council to revoke, alter, or add to any Order so made. 
 
 Every such order in Council shall be published in the London Gazette, and shall 
 be laid before both Houses of Parliament within one month after it is made, if 
 Parliament be then sitting, or if not, within one month after the then next meeting 
 of Parliament. 
 
 Upon the publication of any sucb Order in tbe London Gazette, the Order shall, 
 after the date of sucb publication, or any later date mentioned in the Order, take 
 effect as if it were enacted by Parliament. 
 
 3n
 
 914 
 
 M. S. ACT, 1876, 
 
 li'ees, salaries, 
 and costs, (a) 
 
 Legal pro- 
 ceedings in 
 case of 
 offences. 
 
 Application 
 of Act to 
 Scotland. 
 
 Application 
 of Act to 
 Ireland. 
 
 Application of 
 Act to Isle of 
 Man. 
 
 Saving for 
 colonial inland 
 •waters. 
 
 39. On and after the 1st <Iay of January, 1877, all fees payable in respect of the 
 survey or measurement of ships under the M. S. Acts, 1854 to 1876, or in respect 
 of any ser\dces performed by any person employed under the authority of the 
 Passengers Act, 1855, shall continue to be paid to the superintendent of a mer- 
 cantile°marine office at such times and in such manner as the Board of Trade from 
 time to time direct, but shall be paid into the receipt of H. M.'s Exchetiuer in 
 such mamier as the Treasury from time to time direct, and shall be carried to and 
 form part of the Consolidated Fund of the U. K. 
 
 On and after the same day the salaries of all surveyors (6) appointed under the 
 M. S. Acts, 1854 to 1876, and so much of the expenses connected with the survey 
 and measurement of ships under those Acts, and of the salaries and expenses of 
 persons employed under the Passengers Act, 1855, as has heretofore been paid 
 out of the Mercantile Msiriae Fund, shall be paid out of monies pro\ided by 
 Parliament, and the Treasury shall have the like control over such salaries and 
 expenses as has heretofore been vested in the Board of Trade. 
 
 There may be paid oitt of monies provided by Parliament, to any wreck com- 
 missioner, judge of a court of survey, assessor, registrar of a court of survey, 
 detaining officer, scientific referee, and other officer or person appointed under 
 this Act," such salary or remuneration (if any) as the Treasiuy from time to time 
 direct. 
 
 There may be paid out of monies provided by Parliament, aU costs and com- 
 pensation payable by the Board of Trade in pursuance of tliis Act. 
 
 40. For the purpose of punishment, jurisdiction, and legal proceedings an 
 ofl'ence under this Act shall be deemed to be an offence under the M. S. Act, 
 1854. 
 
 41. In the application of this Act to Scotland, — 
 
 The provision with respect to a prosecution not being instituted except by or 
 with the consent of the Board of Trade shall not apply, 
 
 "Judge of a county court" shall be deemed to include a sheriff and sheriff sub- 
 stitute, and 
 
 " Registrar of a county court " shall be deemed to include sheriff clerk, and 
 
 "A master of the Supreme Court of Judicature" shall mean the Queen's and 
 Lord Treasurer's Remembrancer. 
 
 42. In the application of this Act to Ireland, — 
 
 " Judge of a county court " shall be deemed to include " chairman of a coimty " 
 
 and " the recorder of any borough " ; 
 " Registrar of a county court " shall be deemed to include the clerk of the peace 
 
 or registrar or other person discharging the duties of registrar of the court, of 
 
 the chairman of a cottnty, or the recorder of a borough ; 
 " Stipendiary magistrate " shall be deemed to include any of the justices of the 
 
 peace in Dublin metropolis and any resident magistrate ; and 
 " A master of the Supreme Court of Judicature " shall mean one of the masters 
 
 of the superior courts of common law in Ireland. 
 
 43. In the application of this Act to the Isle of Man, — 
 " Judge of a county court " shall mean the water bailiff ; 
 " Stipendiary magistrate" shall mean a high bailiff ; 
 
 " Registrar of a county court" shall mean a clerk to a deemster or a clerk to 
 
 justices of the peace ; 
 " A master of the Supreme Court of Judicature " shall mean the clerk of the 
 
 rolls. 
 
 44. Nothing in this Act shall apply to any vessel employed exclusively in 
 trading or going from place to place in any river or inland water of which the 
 whole or part is in any British jjossession, and the provisions of this Act relating 
 to deck cargo sliall not apply to deck cargo carried by a ship while engaged in the 
 coasting trade of any British possession. 
 
 (a) By 40 & 41 Vict. c. 44, provision is made for 
 the payment of superannuation allowances of 
 certain surveyors previouslv paid out of the 
 Mercantile Marine Fund, ftnd further provision 
 
 is made respecting the granting of pensions to 
 sur^evors. 
 
 (&) See 43 & 44 Vict. c. 22, s. 4, post, 926.
 
 39 & 40 VICT. c. 80. 
 
 915 
 
 Eepeal. 
 
 45. On and from tlie commencement of tliis Act the Acts specified in the first Repeal of Acts, 
 part of the schedule hereto, and on and from the 1st day of January, 1877, the 
 Acts specified in the 2nd part of the schedule hereto shall be repealed to the 
 extent in the third column of that schedule mentioned : provided that any officer 
 appointed in piu-suance of any such enactment shall be deemed to have been 
 appointed under this Act, and any order in council made in pursuance of any 
 such enactment shall be deemed to have been made under this Act, and this repeal 
 shall not affect — 
 
 (1.) Anything done or suffered under any enactment hereby repealed ; nor 
 (2.) Any right, power, duty, obligation, or liability acquired, imposed, accrued, 
 
 or incurred under any enactment hereby repealed ; nor 
 (3.) Any penalty or punishment incurred in respect of any offence against any 
 
 enactment hereby repealed ; nor 
 (4.) Any legal proceeding in respect of any such right, power, duty, obligation, 
 liability, penalty, or punishment, and any such legal proceeding may be 
 carried on as if this Act had not passed. 
 
 SCHEDULE, 
 PART I. 
 
 Enactments repealed from commencement of Act. 
 
 Session and Chapter. 
 
 Title. 
 
 Extent of repeal. 
 
 17 & 18 Vict. c. 104 - - 
 
 The Merchant 
 
 Shipping 
 
 
 
 Act, 1854 - 
 
 
 Sub-section (4) of section 
 301 ; so much of sec- 
 tion 318 as requires 
 the owner of a ship to 
 transmit the declara- 
 tions therein men- 
 tioned ; section 434 ; 
 and section 437 from 
 " and in case he so re- 
 quires" inclusive to the 
 end of section ; and 
 section 449. 
 
 34 & 35 Vict. c. 110 . - 
 
 The Merchant 
 
 Shipping 
 
 
 
 Act, 1871 - 
 
 - 
 
 Section 11. 
 
 36 & 37 Vict. c. 85 - - 
 
 The Merchant 
 
 Shipping 
 
 
 
 Act, 1873 - 
 
 - 
 
 Sections 11, 12, 13, and 
 14. 
 
 38 & 39 Vict. c. 88 - - 
 
 The Merchant 
 
 Shipping 
 
 
 
 Act, 1875 - 
 
 ~ 
 
 The whole Act. 
 
 3 N 2
 
 916 
 
 EEMOVAL OF WEECKS ACT, 1877. 
 
 PART II. 
 Enactments repealed from 1st January, 1877. 
 
 Session and Cliaptoi-. 
 
 Title. 
 
 Extent of repeal. 
 
 17 & 18 Vict. C. 104 - - 
 35 & 36 Vict, c. 73 - - 
 
 The Mercliant Shi_ppiDg 
 Act, 1854 - 
 
 The Merchant Shipping 
 Act, 1872 - 
 
 Suh-section (2) of section 
 418. 
 
 Section 14. 
 
 Short title. 
 
 Application 
 of Act. 
 
 Interpretation 
 of terms. 
 
 17 & 18 Vict 
 c. 104. 
 Power for 
 harbour or 
 conservancy 
 authority to 
 remove wreck. 
 
 40 & 41 Vict. c. 16. 
 
 An Act to facilitate the Eemoval of TVrecJcs ohstnicting Navigation. 
 
 [28th June, 1877.] 
 Be it enacted, &c., as follows : 
 
 1. This Act may be cited as the Removal of Wrecks Act, 1877. 
 
 2. This Act shall not apply to ships belonging to H. M. 
 
 3. In this Act,— 
 
 The term "harbonr" includes harbours properly so called, whether natural or 
 artificial, estuaries, navigable rivers, piers, jetties, and other works in or at 
 which .ships can obtain shelter, or ship and unship goods or passengers ; 
 
 The term " tidal water" means any part of the sea and any part of a river 
 within the ebb and flow of the tide at ordinary spring tides, and not being a 
 harbour ; 
 
 The term " harbour authority " includes all persons or bodies of persons, corpo- 
 rate or unincorporate, being proprietors of, or intrusted ■ndth the duty or 
 invested with the power of constructing, improving, managing, regulating, 
 maintaining, or lighting a harbour ; 
 
 The tenn "conservancy authority" includes all persons or bodies of persons, 
 corporate or unincorporate, intrusted with the duty or invested with the 
 power of conserving, maintaining, or improving the navigation of a tidal 
 water ; and 
 
 The term "general lighthouse authority" has the same meaning as it has in the 
 M. S. Act, 1854 (a). 
 
 4. Where any vessel is sunk, stranded, or abandoned in any harbour or tidal 
 water under the jurisdiction of a harbour or conservancy authority, or in or near 
 any approach thereto, in such manner as in the opinion of the authority to be, or 
 be likely to become, an obstruction or danger to navigation in that harbour or 
 Avater, or in any approach thereto, the authority may take possession of and raise, 
 remove, or destroy the whole or any part of the vessel, and may light or buoy any 
 such vessel or part until the raising, removal, or destruction thereof, and may sell, 
 in such manner as they think fit, any vessel or part so raised or removed, and 
 also any other property recovered in the exercise of their powers under this Act, 
 and may out of the proceeds of such sale reimburse themselves for the expenses 
 
 (a) See ante.
 
 FACTOEs' ACT, 1877, 40 & 41 VICT. 0. 39. 917 
 
 incurred by tliem under this Act, and shall hold the surplus, if any, of such pro- 
 ceeds in trust for the persons entitled thereto. 
 Provided as follows : 
 
 (1.) 'Except in the case of property which is of a perishable nature, or which 
 would deteriorate in value by delay, a sale shall not be made under this 
 Act until at least seven clear days' notice of the intended sale has been 
 given by advertisement in some local newspaper circulating in or near 
 the district over which the authority have jurisdiction ; and 
 (2.) At any time before any property is sold under this Act, the owner thereof 
 shall be entitled to have the same delivered to him on payment to the 
 authority of the fair market value thereof, to be ascertained by agreement 
 between the authority and the owner, or failing such agreement l)y some 
 person to be named for the purpose by the Board of Trade, and the sum 
 paid to the authority as the value of any property under this provision 
 shall, for the purposes of this Act, be deemed to be the proceeds of sale 
 of that property. 
 
 5. Where any vessel is sunk, stranded, or abandoned in any fairway, or on the gg^raUight- 
 sea-shore, in the U. K., the Channel Islands, or the Isle of Man, or any of the house authority 
 adjacent seas or islands, and there is not any harbour or conservancy authority to remove 
 having power to raise, remove, or destroy the same, the general lighthouse autho- 
 rity for that part of the U. K. in or near which the vessel is situate shall, if in 
 
 their opinion the same is or is likely to become an obstruction or danger to navi- 
 gation, have the same powers in relation thereto as are by this Act conferred upon 
 a harbour or conservancy authoritj". 
 
 All expenses incurred by the general lighthouse authority under this Act, and 
 not reimbursed in marmer provided by this Act, shall be paid out of the mercan- 
 tile marine fund (b). 
 
 6. Tlie provisions of this Act shall apply to every article or thing or collection ?'°"'f",°A 
 
 PI* !• 1' • PI 11 ■ 1 n i- removdi lo 
 
 01 |thmgs bemg or lormmg part oi the tackle, equipments, cargo, stores, or ballast extend to 
 of a vessel in the same manner as if it were included in the term " vessel," and tackle, cargo, 
 for the purposes of this Act any proceeds of sale arising from a vessel and from 
 the cargo thereof, or any other property recovered therefrom, shall be regarded as 
 a common fund. 
 
 7. If any question arises between a harbour or conservancy authority on the 3°^.^ of^Trade 
 one hand and a general lighthouse authority on the other hand, as to their respec- to'determnie 
 tive powers under this Act in relation to any place being in or near an approach certain ques- 
 to a harbour or tidal water, the same shall, on the application of either autho- authorftSs.^"^ 
 rity, be referred to the decision of the Board of Trade, and that decision shall 
 
 be final. 
 
 8. The powers conferred by this Act shall be deemed to be in addition to and Powers of 
 not in derogation of any other powers for the like object. 
 
 THE FACTORS' ACT, 1877. 
 40 & 41 Vict. c. 39. 
 
 An Act to Amend the Factors' Act, 
 
 [10th August, 1877.] 
 
 Whereas doubts have arisen with respect to the true meaning of certain provi- 
 sions of the Factors' Acts, and it is expedient to remove such doubts and other- 
 wise to amend the said Acts, for the better security of persons buying or making 
 advances on goods, or documents of title to goods, in the usual and ordinary course 
 of mercantile business : 
 
 Be it enacted, &c., as follows : 
 
 (b) Sec 43 & 44 Vict. C. 22, s. 5, post, 927.
 
 918 
 
 TEEEITOETAL WATEES JUEISDICTION ACT, 1878, 
 
 Factors Acts 
 defined. 
 
 Amendment 
 of law with 
 respect t" 
 secret revo- 
 cation of 
 entnistment 
 or agency. 
 
 With respect 
 to vendors 
 permitted 
 to retain 
 documents 
 of title to 
 goods. 
 
 With respect 
 to vendees 
 permitted 
 to have 
 possession of 
 documents 
 of title to 
 goods. 
 
 With respect 
 to transfers 
 of documents 
 of title. 
 
 Act not to be 
 retrospective. 
 
 1. In this Act, the expression "the principal Acts " means the following Acts ; 
 that is to say, 
 
 The Act of the 4th Geo. IV. (1823), c. 83. 
 The Act of the 6th Geo. IV. (1825), c. 94. 
 The Act of the 5th and 6th of Her Majesty (1842), c. 39. 
 And the said Acts and this Act may be cited for all purposes as the " Factors' 
 Acts, 1823 to 1877." 
 
 2. Where any agent or person has been entrusted with and continues in the 
 possession of any goods, or documents of title to goods, within the meaning of the 
 principal Acts as amended by this Act, any revocation of his entrustment or 
 agency shall not prejudice or afiect the title or rights of any other person who, 
 without notice of such revocation, pitrchases such goods, or makes advances upon 
 the faith or security of such goods or documents. 
 
 3. Where any goods have been sold, and the vendor or any person on his behalf 
 continues or is in possession of the documents of title thereto, any sale, pledge, or 
 other disposition of the goods or documents made by such vendor or any person or 
 agent entrusted by the vendor with the goods or documents within the meaning of 
 the principal Acts as amended by this Act so continuing or being in possession, 
 shall be as valid and efl'ectual as if such vendor or j^erson were an agent or person 
 entrusted by the vendee Avith the goods or documents within the meaning of the 
 principal Acts as amended by this Act, provided the person to whom the sale, 
 pledge, or other disposition is made has not notice that the goods have been 
 jareviously sold. 
 
 4. Where any goods have been sold or contracted to be sold, and the vendee, or 
 any person on his behalf, obtains the possession of the documents of title thereto 
 from the vendor or his agents, any sale, pledge, or disposition of such goods or 
 documents by such vendee so in possession or by any other person or agent 
 entrusted by the vendee with the documents within the meaning of the principal 
 Acts as amended by this Act shall be as valid and effectual as if such vendee or 
 other person were an agent or person entrusted by the vendor with the docitments 
 Avithin the meaning of the principal Acts as amended by this Act, provided the 
 person to whom the sale, pledge, or other disposition is made has not notice of any 
 lien or other right of the vendor in respect of the goods. 
 
 5. Where any document of title to goods has been lawfully indorsed or otherwise 
 transferred to anj' person as a vendee or owner of the goods, and such person 
 transfers such document by indorsement (or by delivery where the document is by 
 custom, or by its express terms transferable by delivery, or makes the goods 
 deliverable to the bearer) to a person who takes the sa.nie bond fide and for valuable 
 consideration, the last-mentioned transfer shall have the same effect for defeating 
 any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading 
 has for defeating tlie right of stoppage in transitu. 
 
 6. This Act shall apply only to acts done and rights acquired after the passing 
 of this Act. 
 
 THE TEERITOEIAL WATEES JUEISDICTION ACT, 1878. 
 
 41 & 42 Vict c. 73. 
 
 An Act to regulate the Law relating to the Trial of Offences committed on the Sea 
 vnthin a certain distance of the Coasts of Her Majesty's Dominions. 
 
 [16th August, 1878.] 
 
 Whereas the rightfitl jurisdiction of H. M., her heirs and successors, extends and 
 has always extended over tlie open seas adjacent to the coasts of the U. K, and of 
 all other parts of H. M.'s dominions to such a distance as is necessary for the 
 defence and security of such dominions :
 
 41 & 42 VICT. c. 73. 910 
 
 And whereas it is expedient that all offences committed on the open sea within 
 a certain distance of the coasts of the U. K. and of all other parts of H. M,'s 
 dominions, by whomsoever committed, should be dealt with according to law (a) : 
 
 Be it tlierefore enacted, &c., as follows : 
 
 1. This Act may be cited as the Territorial Waters Jurisdiction Act, 1878. Short title. 
 
 2. An offence committed by a person, whether he is or is not a subject of H. M., Amendment 
 on the open sea within the territorial waters of H. M.'s dominions, is an offence of the law 
 within the jurisdiction of the admiral, although it may have been committed on jurisdiction 
 board or by means of a foreign ship, and the person who committed such offence of the 
 may be arrested, tried, and punished accordingly. admiral (&). 
 
 3. Proceedings for the trial and punishment of a person who is not a subject of on Institution 
 H. M., and who is charged with any such offence as is declared by this Act to be on proceed- 
 within the jurisdiction of the admiral, shall not be instituted in any court of the ings for 
 
 TJ. K., except with the consent of one of H. M.'s principal secretaries of state, and of'offence.^ 
 on his certificate that the institution of such proceedings is in his opinion expe- 
 dient, and shall not be instituted in any of the dominions of H. M. out of the U. K., 
 except with the leave of the governor of the part of the dominions in which such 
 proceedings are proposed to be instituted, and on his certificate that it is expedient 
 that such proceedings should be instituted. 
 
 4. On the trial of any person who is not a subject of Her Majesty for an offence Provisions 
 declared by this Act to be within the jurisdiction of the admiral, it shall not be ^^*° P^oce- 
 necessary to aver in any indictment or information on such trial that such consent 
 
 or certificate of the Secretary of State or governor as is required by this Act has 
 been given, and the fact of the same having been given shall be presumed unless 
 disputed by the defendant at the trial ; and the production of a document pur- 
 porting to be signed by one of H. M.'s principal secretaries of state as respects the 
 U. K., and by the governor as respects any other part of H. M.'s dominions, and 
 containing such consent and certificate, shall be sufficient evidence for all the pur- 
 poses of this Act of the consent and certificate required by this Act. 
 
 Proceedings before a justice of the peace or other magistrate previous to the 
 committal of an offender for trial or to the determination of the justice or magis- 
 trate that the offender is to be put upon his trial shall not be deemed proceedings 
 for the trial of the offence committed by such offender for the purposes of the said 
 consent and certificate under this Act. 
 
 5. Nothing in this Act contained shall be construed to be in derogation of any saving as to 
 rightful jurisdiction of H. M., her heirs or successors, under the law of nations, jurisdiction, 
 or to affect or prejudice any jurisdiction conferred by Act oi parliament or now 
 
 by law existing in relation to foreign ships or in relation to persons on board 
 such ships. 
 
 6. This Act shall not prejudice or affect the trial in manner heretofore in use Saving as to 
 of any act of piracy as defined by the law of nations, or affect or prejudice any piracy, 
 law relating thereto ; and where any act of piracy as defined by the law of 
 nations is also any such offence as is declared by this Act to be within the juris- 
 diction of the admiral, such offence may be tried in pursuance of this Act, or in 
 pursuance of any other Act of parliament, law, or custom relating thereto. 
 
 7. In this Act, unless there is something inconsistent in the context, the follow- Definitions, 
 ing exj^ressions shall respectively have the meanings hereinafter assigned to them ; 
 
 that is to say, 
 
 " The jurisdiction of the admiral," as used in this Act, includes the jurisdiction " jurisdic- 
 of the admiralty of England and Ireland, or either of such jurisdictions as tionof the 
 used in any Act of parliament ; and for the purpose of arresting any person ^'■^'^^'^^l '• " 
 charged wiih an offence declared by this Act to be within the jurisdiction of 
 the admiral, the territorial Avaters adjacent to the U. K., or any other part of 
 H. M.'s dominions, shall be deemed to be within the jurisdiction of any 
 judge, magistrate, or officer having power within such U. K., or other part of 
 H. M.'s dominions, to issue warrants for arresting or to arrest persons charged 
 with offences committed within the jurisdiction of such judge, magistrate, or 
 officer : 
 
 (a) Sec R. V. Keyii, the Franconia casej 46 L. J. (.h) As to the trial of offences committed on the 
 
 SI. C. 17. sea, see 1 Russ. on Crimes, by Prentice, p. 10.
 
 920 
 
 SHIPPING CASUALTIES, &C., ACT, 1879. 
 
 " United 
 Kingdom : " 
 
 " Territorial 
 waters of 
 H. M. 
 dominions ; " 
 
 Governor: 
 
 " Offence : 
 
 "Ship:" 
 " Foreign 
 ship." 
 
 " United Kingdom " includes the Isle of Man, the Channel Islands, and other 
 adjacent islands : 
 
 " The territorial -waters of H. M.'s dominions," in reference to the sea, means 
 snch part of the sea adjacent to the coast of the U. K., or the coast of some 
 other part of H. M.'s dominions, as is deemed by international law to be 
 •vrithin the territorial sovereignty of H. M. ; and for tbe purpose of any 
 offence declared by this Act to be within the jurisdiction of the admiral, any 
 part of the open sea within one marine league of the coast measured from 
 low-water mark shall be deemed to be open sea within the teri-itorial waters 
 of H. M.'s dominions : 
 
 " Governor " as respects India, means the governor-general or the governor of 
 any presidency ; and where a British possession consists of several consti- 
 tuent colonies, means the governor-general of the whole possession or the 
 governor of any of the constituent colonies ; and as respects any other British 
 j)ossession, means the officer for the time being administeiing the government 
 of such possession ; also any person acting for or in the capacity of governor 
 shall be included under the term " governor :" 
 
 " Offence " as used in this Act means an act, neglect, or default of such a descrip- 
 tion as would, if committed within the body of a county in England, be 
 punishable on indictment according to the law of England for the time being 
 in force : 
 
 " Ship " includes every description of ship, boat, or other floating craft : 
 
 " Foreign ship " means any sMp wliich is not a British ship. 
 
 THE SHIPPING CASUALTIES INVESTIGATIONS ACT, 1879. 
 
 42 & 43 Vict. c. 72. 
 
 misconduct of 
 
 officer. 
 
 17 & 18 Vict. 
 
 c. 104. 
 
 An Ad to provide for the re-hearing of Investigations into Slivppinq Casiudties, and 
 to amend the rules as to the mode of holding, and procedure at, such investigation 
 
 [15th August, 1879.] 
 
 Be it enacted, &c., as follows ; that is to say, 
 Short title. 1- This Act may be cited as the Shipping Casualties Investigations Act, 1879, 
 
 Re-hearing of 2. (1.) Wiiere an investigation into the conduct of a master, mate, or engineer, 
 
 and appeal or into a shipping casualtv, has been held under the M. S. Act, 1854, or any Act 
 
 gaiion into ship- amending tlie same, or under any provision for holding such investigations in a 
 ping casuaitj' or British possession, the Board of Trade may, in any case, and shall, if new and 
 important evidence which could not be produced at the investigation has been 
 discovered, or if for any other reason there has in their opinion been gi-ound for 
 suspecting a miscarriage of justice, order that the case be re-heard, either gene- 
 rally or as to any part thereof, and either by the court or authority by whom it 
 was heard in the first instance, or by the wreck commis-sioner, or in England or 
 Ireland by a judge of H. M.'s High Court of Justice exercising jurisdiction in 
 Admiralty cases, or in Scotland by the Senior Lord Ordinarj^, or any other judge 
 in the Court of Session whom the Lord President of that court may appoint lor 
 the purpose, and the case shall be so re-heard accordingly. 
 
 (2.) Where, in any such investigation, a decision has been given with respect 
 to the cancelling or suspension of the certificate of a master, mate, or engineer, 
 and an application for a re-hearing under this section has not been made or has 
 been refused, an appeal shall lie from the decision to the following courts; 
 namely, 
 
 («.) If the decision is given in England or by a naval court, the Probate, 
 Divorce, and Admii-alty Division of H. M/s High Court of Justice : («) 
 
 (a) The ArUona, 49 L. J. Ad. 64.
 
 43 & 44 vioT. c. 16. 921 
 
 (b.) If the decision is given in Scotland, either division of the Court of Session : 
 
 (c.) If the decision is given in Irehmd, the High Court of Admiralty, or the 
 Judge or Division of H. M.'s High Court of Justice exercising jurisdic- 
 tion in Admii'alty cases. 
 
 (3.) Any re-hearing or appeal under this section shall be subject to and con- 
 ducted in accordance with such conditions and regulations as may from time to 
 time be prescribed by general rules made under section 30 of the M. S. Act, 39 & 40 Vict. c. 80. 
 1876. (h) 
 
 3. (1.) The list of persons approved as assessors for the purpose of formal mves- ^g"4f^^^^^*^g'^;to 
 tigations into shi^jping casualties shall be in force for three years only, but persons shipp^jng casual- 
 entered in any such list may be approved for any subsequent list. The list of ties and miscou- 
 those persons in force at the passing of this Act shall continue in force until the ductotomceis. 
 end of the year 1880, but nothing in this section shall affect the power of the 
 Secretary of State to withdraw his approval of any name on any such list or to 
 approve of any additional name, (b) 
 
 (2.) The assessor or assessors for each such investigation shall, instead of being 
 appointed by the commissioner, justices, or other authority holding the investiga- 
 tion, 1)6 appointed in such manner and according to such regulations as may be ggyjgt.c.so 
 fi'om time to time prescribed by general ndes made imder section 30 of the M. S. 
 Act, 1876. (6) 
 
 (3.) Where any such investigation involves or appears likely to involve any 
 question as to the cancelling or suspension of the certificate of a master, mate, or 
 engineer it shall be held with the assistance of not less than two assessors having 
 experience in the merchant service, (b) 
 
 (4.) A master, mate, or engineer shall not be required to deliver his certificate 
 under section 438 of the M. S. Act, 1854, or section 24 of the M. S. Act, 1862, 17 & 18 Vict. 
 unless the certificate is suspended or cancelled, and the words "or is to be" in 25''^^*2G Vict 
 the latter of those sections are hereby repealed. _ c. 63. 
 
 (5.) Investigations into shipping casualties shall be held in some town hall, 
 assize or county court, public building, or in some other suitable place to be 
 determined according to general rules made for the purpose by the Lord High 
 Chancellor of Great Britain, and unless no other suitable place is in the opinion 
 of the Board of Trade available, shall not be held in a court ordinarily used as a 
 police court. 
 
 4. Any general rule made in pursuance of this Act shall be laid before both Rules to be laid 
 Houses of Parliament within 30 days after it is made, if Parliament be then ^^Jore Pailia- 
 sittiug, or if not, within 30 days after the commencement of the then next ensuing 
 
 session. 
 
 5. This Act shall commence and come into operation on the 1st day of Commencement 
 November, 1879 : Provided that any rules which may be required for the pur- ° ^ • 
 poses of this Act may be made at any time before the commencement of this Act, 
 
 but, if so made, shall not come into operation until the commencement of this 
 Act. 
 
 MERCHANT SEAMEN (PAYMENT OF WAGES AND EATING) 
 
 ACT, 1880. 
 
 43 & 44 Vict. c. 16. 
 
 An Act to amend the km relating to the Payment of Wages and Ua.ting of 
 Merchant Seamen. [2nd August, 1880.] 
 
 Be it enacted, &c., as follows ; (that is to say,) , Short title and 
 
 1. This Act may be cited as the Merchant Seamen (Payment of Wages and consti-uctiou 
 Eating) Act, 1880. 
 
 Qj) See the rules of 1879 and 1880 referred to in note to 39 & 40 Vict. c. 80, s. 30, ante, p. 909.
 
 922 
 
 M. s. (payment of wages, &c.), act, 1880, 
 
 17 &. 18 Vict. 
 c. 104, &c. 
 
 Conditional 
 advance notes 
 illegal. 
 
 17 & IS Tict. 
 c. lo-l. 
 
 Amendment of 
 17 & 18 Vict. 
 c. 104, s. 169, 
 as to allotment 
 notes. 
 
 17 & 18 Vict. 
 c. 104. 
 
 17 & 18 Vict, 
 c. 104. 
 
 17 & 18 Vict. 
 c. 104. 
 
 Rules as to 
 payment of 
 ■wages. 
 
 17 5:18 Vict, 
 c. 104. 
 
 17 & 18 Vict. 
 c. 104. 
 
 This Act shall be construed as one with the M. S. Acts, 1854 to 1876, and those 
 Acts and this Act may l^e cited collectively as the Merchant Shipping Acts, 185-4 
 to 1880. 
 
 2. (1.) After the 1st day of August, 1881, any document authorizing or pro- 
 mising, or purporting to authorise or promise, the future payment of money on 
 account of a seaman's wages conditionally on his going to sea from any port in the 
 U. K., and made before those wages have been earned, shall be void. 
 
 (2.) No mouej" paid in satisfaction or in respect of any such document shall be 
 deducted from a seaman's wages, and no person shall have any right of action, 
 suit, or set-otf against the seaman or his assignee in respect of any money so paid 
 or purporting to have been so paid. 
 
 (3.) Nothing in this section shall affect any allotment note made under the 
 M. S. Act, 1854. 
 
 3. (1.) Every agreement with a seaman which is required by the M. S. Act, 
 1854, to be made in the form sanctioned by the Board of Trade shall, if the 
 seaman so require, stipulate for the allotment of any part not exceeding one half 
 of the wages of the seaman in favour of one or more of the persons mentioned in 
 section 169 of the M. S. Act, 1854, as amended by this section. 
 
 (2.) The allotment may also be made in favoiu* of a savings bank, and in that 
 case shall be in favoiu- of such persons and carried into effect in such manner as 
 may l)e for the time being directed by regulations of the Board of Trade, and 
 section 169 of the M. S. Act, 1854, shall be construed as if the said persons were 
 named therein. 
 
 (3.) The sum received in pursuance of such allotment by a savings bank shall 
 be paid out only on an application made, through a superintendent of a mercan- 
 tile marine office or the Board of Trade, by the seaman himself, or, in case of 
 death, by some person to whom the same might be paid under section 199 
 of the M. S. Act, 1854. 
 
 (4.) A payment under an allotment note shall begin at the expiration of one 
 month, or, if the allotment is in favour of a savings bank, of three months, from 
 the date of the agreement, or at such later date as may be fixed by the agreement, 
 and shall be paid at the expiration of every subsequent mouth, or of such other 
 periods as may be fixed by the agreement, and shall be paid only in respect of 
 wages earned before the date of payment. 
 
 (5.) For the purposes of this section " savings bank" means a savings bank 
 established under one of the Acts mentioned in the First Schedule to this Act. 
 
 4. In the case of foreign-going ships — 
 
 (1.) The owner or master of the ship shall pay to each seaman on account, at 
 the time when he lawfully leaves the ship at the end of his engagement, £2, or 
 one fourth of the balance due to him, whichever is least ; and shall pay him the 
 remainder of his wages within two clear days (exclusive of any Sunday, Fast Day 
 in Scotland, or Bank Holiday) after he so leaves the ship. 
 
 (2.) The master of the ship may deliver the account of wages mentioned in 
 section 171 of the M. S. Act, 1854, to the seaman himself at or before the time 
 when he leaves the ship instead of delivering it to a superintendent of a mercantile 
 marine office. 
 
 (3.) If the seaman consents, the final settlement of his wages may be left to the 
 superintendent of a mercantile marine office imder regulations to be made by the 
 Board of Trade, and the receipt of the superintendent shall in that case operate as 
 a release by the seaman under section 175 of the M. S. Act, 1854. 
 
 (4.) In the event of the seaman's wages or any part thereof not being paid or 
 settled as in this section mentioned, then, unless the delay is due to tlie act or 
 defaidt of the seaman, or to any reasonable dispute as to liability, or to any other 
 cause not being the act or default of the owner or master, the seaman's wages 
 shall continue to run and be payable until the time of the final settlement 
 thereof. 
 
 (5.) Where a question as to wages is raised before the superintendent of a 
 mercantile marine oflice between the master or owner of a ship, and a seaman or 
 apprentice, if the amount in question does not exceed £5, the suj)erintendent may 
 adjudicate, and the decision of the superintendent in the matter shall be final > 
 but if the superintendent is of opinion that the question is one which ought to be 
 decided by a court of law he may refuse to decide it.
 
 43 & 44 VICT. 0. 16. 923 
 
 5. Where a ship is about to arrive, is arriving, or has arrived at the end of her Penalty for 
 voyage, every person, not being in H. M.'s service or not being duly authorized g;^jp°\.°°jj^°t^''^ 
 by law for the purpose, who — pei-ml-sion 
 
 (a.) goes on board the ship, without the permission of the master, before the before seamen 
 
 seamen lawfully leave the ship at the end of their engagement, or are ly^&^ig ylct. 
 
 discharged (whichever last happens) ; or, c 104, s. 237. 
 
 (6.) being on board the ship, remains there after being warned to leave by the 
 
 master, or by a police officer, or by any officer of the Board of Trade or 
 
 of the Customs, 
 shall for every such offence be liable on summary conviction to a fine not exceed- 
 ing £20, or, at the discretion of the court, to imprisonment for any term not 
 exceeding six months ; and the master of the ship or any officer of the Board of 
 Trade may take him into custody, and deliver him ujj forthwith to a constable to 
 be taken before a court or magistrate capable of taking cognizance of the offence, 
 and dealt with according to law. 
 
 6. Whenever it is made to appear to H. M. — Provisions con- 
 (1.) That the government of any foreign country has provided that unautho- g^™^^ "pp'jy'^'^^^ 
 
 rised persons going on board of British ships which are about to arrive ships belonging 
 
 or have arrived within its territorial iurisdiction shall be subject to pro- ^'^ foreign 
 
 .. . countries m 
 
 visions similar to the provisions contained in the last preceding section certain cases. 
 
 as applicable to persons going on board British ships at the end of their 
 
 voyages ; and 
 (2.) That the government of such foreign countrj^ is desirous that the provisions 
 
 of the said section shall apply to unauthorised persons going on board of 
 
 ships belonging to such foreign coimtry within the limits of British 
 
 territorial jurisdiction ; 
 H. M. may, by order in council, declare that the provisions of the said last pre- 
 ceding section shall a2Dply to the ships of such country ; and thereupon so long as 
 the order remains in force those provisions shall apply and have effect as if the 
 ships of such country were British ships arriving, about to arrive, or which had 
 arrived at the end of their voyage. 
 
 7. A seaman shall not be entitled to the rating of A.B., that is to say, of an Rating of 
 able-bodied seaman, unless he has served at sea for 4 years before the mast, seamen, 
 but the employment of fishermen in registered decked fishing vessels shall only 
 
 count as sea service up to the period of three years of such employment ; and the 
 rating of A.B. shall only be granted after at least one year's sea service in a 
 trading vessel in addition to three or more years sea service on board of registered 
 decked fishing vessels. 
 
 Such service may be proved by certificates of discharge, by a certificate of 
 service from the Registrar-General of Shipping and Seamen (which certificate the 
 registrar shall grant on ]3ayment of a fee not exceeding sixpence), and in which 
 shall be specified whether the service was rendered in whole or in part in steam 
 ship or in sailing ship, or by other satisfactoiy proof. 
 
 Nothing in this section shall affect a seaman who has been rated and has served 
 as A.B. before the passing of this Act. 
 
 _ 8. Where a proceeding is instituted in or before any court in relation to any Power of court 
 dispute between an owner or master of a ship and a seaman or apprentice to the to reacind con- 
 sea service, arising out of or incidental to their relation as such, or is instituted for owner ormaster 
 the purpose of this section, the court, if, having regard to all the circumstances and seaman or 
 of the case, they think it just so to do, may rescind any contract between the apprentice, 
 owner or master and the seaman or apprentice, or any contract of apprenticeship, 
 upon such terms as the court may think just, and this power shall be in addition 
 to any other jurisdiction which the court can exercise independently of this section. 
 
 For the purposes of this section the term " court" includes any magistrate or 
 justice having jurisdiction in the matter to which the proceeding relates. 
 
 9. It shall be lawful for the sanitary authority of any seaport town to pass bye- Licensing of 
 laAvs for the licensing of seamen's lodging-houses, for the periodical inspection of ^eamens 
 the same, for the granting to the persons to whom such licences are given, the ° ^^^^' °"'^^' 
 authority to designate their houses as seamen's licensed lodging-houses, and for 
 prescribing the penalties for the breach of the provisions of the bye-laws : Pro- 
 vided always, that no such bye-laws shall take eftect tUl they have received the 
 approval of the Board of Trade.
 
 924 
 
 Desertion and 
 absence with- 
 out leave. 
 
 17 & 18 Vict. 
 C. 104. 
 
 17 & 1.8 Vict. 
 C.104 
 
 17 & 18 Vict. 
 c. 104. 
 
 Extension to 
 seamen of 
 38 & 39 Vict. 
 C.90. 
 
 88 & 39 Vict. 
 c.90. 
 
 Repeal of 
 enactments 
 in Second 
 fciclaedule. 
 
 M. s. (payment of wages, &c.), act, 1880. 
 
 10, The following provisions shall from the commencement of this Act have 
 operation within the U. K. : 
 
 A seaman or apprentice to the sea service shall not be liable to imprisonment 
 for deserting or for neglecting or refusing without reasonable cause to join his 
 ship or to proceed to sea in his ship, or for absence without leave at any time 
 within 24 hours of his ship's sailing from any port, or for absence at any time 
 without leave and without sufficient reason from his ship or from his duty. 
 
 Whenever either at the commencement or during the progress of any voyage 
 any seaman or apprentice neglects or refuses to join or deserts from or refuses to 
 proceed to sea in any ship in which he is duly engaged to serve, or is found other- 
 wise absenting himself therefrom without leave, the master or any mate, or the 
 owner, ship's husband, or consignee may, with or without the assistance of the 
 local police officers or constables, who are hereby directed to give the same, if 
 required, convey him on board : Provided that if the seaman or apprentice so 
 requires he shall fii'st be taken before some court capable of taking cognizance of 
 the matters to be dealt -nith according to law ; and that if it appears to the court 
 before which the case is brought that the seaman or apprentice has been conveyed 
 on board or taken before the court on improj)er or insufficient grounds, the 
 master, mate, owner, ship's husband, or consignee, as the case may be, shall incur 
 a penalty not exceeding £20, but such penalty, if inflicted, shall be a bar to any 
 action for false imprisonment. 
 
 If a seaman or apprentice to the sea service intends to absent himself from his 
 ship or his dut\% he may give notice of his intention, either to the owner or to the 
 master of the ship, not less than 48 hours before the time at which he ought to be 
 on board his ship ; and in the event of such notice being given, the court shall 
 not exercise any of the powers conferred on it by section 247 of the M. S. Act, 
 1854. 
 
 Subject to the foregoing provision of this section, the powers conferred by section 
 247 of the M. S. Act, 1854, may be exercised, notwithstanding the abolition of 
 imprisonment for desertion and similar offences, and of apprehension without 
 warrant. 
 
 Nothing in this section shall affect section 239 of the M. S. Act, 1854. 
 
 11, The 13th section of the Employers and Workmen Act, 1875, shall be re- 
 pealed in so far as it operates to exclude seamen and apprentices to the sea 
 ser\'ice from the said Act, and the said Act shall apply to seamen and apprentices 
 to the sea service accordingly ; but sitch repeal shall not, in the absence of any 
 enactment to the contrary, extend to or affect any pro\dsion contained in any 
 other Act of Parliament passed, or to be passed, whereby workman is defined 
 by reference to the persons to whom the Employers and Workmen Act, 1875, 
 applies. 
 
 12. The enactments described in the Second Schedule to this Act shall be 
 repealed as from the commencement of this Act within the U. K. 
 
 Provided that this repeal shall not affect — 
 
 (1.) Anything duly done or suffered before tbe commencement of this Act under 
 any enactment hereby repealed ; or 
 
 (2.) Any right or pri\'ilege acqitired or any liability incurred before the com- 
 mencement of this Act, under any enactment hereby repealed ; or 
 
 (3.) Any imprisonment, fine, or forfeiture, or other punishment incurred or to 
 be incurred, in respect of any offence committed before the commence- 
 ment of this Act, under any enactment hereby repealed ; or 
 
 (4.) The institution or prosecution to its termination of any investigation ot 
 legal proceeding, or any other remedy for prosecuting any such offencej 
 or ascertaining, enforcing, or recovering any such liability, imprison- 
 ment, fine, forfeiture, or punishment as aforesaid, and any such investiga- 
 tion, legal proceeding, and remedy may be carried on as if this repeal 
 had not been enacted.
 
 43 & U VICT. c. 18. 925 
 
 SCHEDULES. 
 
 FIRST SCHEDULE. 
 
 Cliapter. Savings Banks. 
 
 24 & 25 Vict. c. 14 - - - Post Office Savings Banks. 
 
 ?? t TL J-^I* ^' ?L " 1 Qf>" "I Trustee Savins^s Banks. 
 
 !q ? In I : '■ 1? ' '• ■ Seamen's Savings Banks. 
 
 19 & 20 Vict. c. 41 - - - ; ^ 
 
 SECOND SCHEDULE. 
 
 (17 & 18 Vict. c. 104, in part.) 
 
 The Merchant Shipping Act, ] 854, in part : namely, 
 
 In section 243, sub-section (1), tlie words "to imprisonment for any period not 
 exceeding twelve weeks with or without hard labour; and also" 
 
 In section 243, sub-section (2), the words "to imprisonment for any period not 
 exceeding ten weeks with or without hard labour, and also at the discretion of 
 the court." 
 
 Section 246. 
 
 In section 247 the words " instead of committing the offender to prison ; " 
 
 And section 248. 
 
 MERCHANT SHIPPING ACT (1854) AMENDMENT ACT, 1880. 
 
 43 & 44 Vict. c. 18. 
 
 An Act to amend the Merchant Shipping Act, 1854. 
 
 [2nd August, 1880.] 
 
 Whereas it is expedient to amend the Merchant Shipping Act, 1854 : 17 & 18 Vict, 
 
 Be it enacted, &c., as follows : c. 104. 
 
 1. This Act may be cited as the Merchant Shipping Act (1854) Amendment short title 
 Act, 1880. 
 
 2. Sub-section 2 of section 37 of the recited Act is hereby repealed, and Amendment of 
 in place thereof it is enacted that the following words shall be deemed and iv^&ig vict 
 be taken to be the 2nd sub- section of the 37th section of the recited Act, and the c. lo-i.as to ' 
 recited Act shall be read and construed as if the 2nd sub-section of the 37th section p>;m'3er of ^ 
 thereof had been originally expressed in the following words, videlicet : oTshipI'^'^^''' 
 
 Subject to the provisions with respect to joint owners or owners by transmission 
 hereinafter contained, not more than 64 individuals shall be entitled to be 
 registered at the same time as owners of any one ship ; but this rule .shall not 
 affect the beneficial title of any number of persons of any company represented by 
 or claiming under or through any registered owner or joint owner.
 
 926 
 
 M. S, ACT ('i854i), AMENDMENT ACT, 1880, 
 
 MEECHANT SHIPPING (FEES AND EXPENSES) ACT, 1880, 
 
 43 & 44 Vict. c. 22. 
 
 An Act to amend the Merchant Shipping Act, 1854, so far as regards certain Fees and 
 Expenses and Sums receivable and payable by the Board of Trade. 
 
 [12tli August, 1880.] 
 
 Short title ami 
 
 construction of 
 
 Act. 
 
 17 & 18 Vict. 
 
 C. 101. 
 
 Application of 
 proceeds of 
 unclaimed 
 wreck towards 
 payment of 
 expenses con- 
 nected with 
 wreck. 
 17 & 18 Vict, 
 c. 104. 
 
 Explanation of 
 14 & 15 Vict. 
 C. 102, s. 43. 
 
 14 & 16 Vict. 
 C. 102. 
 
 Provisions as 
 to fees on exa- 
 mination of 
 engineers. 
 25 & 26 Vict. 
 c. 63, s. 7. 
 
 39 & 40 Vict. 
 C. 80. 
 
 25 & 26 Vict. 
 C.63. 
 
 Be it enacted, &c., as follows : 
 
 1. This Act may be cited as the Merchant Shipping (Fees and Expenses) Act, 
 1880. 
 
 This Act shall be construed as one -nith the M. S. Act, 1854, and the Acts 
 amending the same, and together with those Acts may be cited as the Merchant 
 Shipping Acts, 1854 to 1880. 
 
 2. Whereas imder section 475 of the M. S. Act, 1854, a receiver of wreck ap- 
 pointed imder that Act is required to pay into the exchequer the net proceeds of 
 the sale of unclaimed wreck : 
 
 And whereas in pursuance of section 457 of the M. S. Act, 1854, the fees received 
 by such receiver of wreck are carried to the Mercantile Marine Fund, and applied 
 in defraying any expenses duly incurred in carrying into effect the purposes of 
 the 8th part of that Act, in such manner as the Board of Trade dii'ect : 
 
 And whereas the fees have been insufficient to defray such expenses, and the 
 deficiency has been paid out of the said proceeds of unclaimed wreck, and the 
 balance alone of such proceeds has been paid into the exchequer, and it is ex- 
 pedient to sanction the payment of the said deficiencj^ ; be it therefore enacted as 
 follows : 
 
 Any deficiency so paid as aforesaid, before the 31st day of March, 1880, out 
 of the proceeds of unclaimed wreck, shall be deemed to have been properly 
 paid. 
 
 3. Whereas by section 43 of the Seamen's Fund Winding-up Act, 1851, it is 
 provided that a seaman who ceases altogetlier for a continuous period of 3 years to 
 pay his contribution to the fund shall forfeit all claim to any relief for himself, his 
 widow, and children ; and it is expedient to amend the said enactment ; be it 
 therefore enacted as follows : 
 
 The Board of Trade may remit the said forfeiture in the case of any seaman if 
 he satisfies them that during the said continuous period of 3 years he had not 
 served at sea for any time or for such time as to render it just for him to pay his 
 contribution, and that such non-service at sea did not arise from his having left 
 the sea service when still of age and strength to continue in it and with the inten- 
 tion of not returning to the same. 
 
 Section 43 of the Seamen's Fund Winding-up Act, 1851, as amended by 
 this section, shall apply to masters as if they were mentioned therein in addi- 
 tion to seamen. 
 
 4. Whereas by section 7 of the M. S. Act Amendment Act, 1862, it is provided 
 that the fees payable by applicants for examination for certificates of competency 
 as engineers shall be carried to the account of the Mercantile Marine Fund, and at 
 the time of the passing of that Act the salaries of the surveyors, by whom the 
 examinations are conducted, were paid out of the Mercantile Marine Fund : 
 
 And whereas under section 39 of the M. S. Act, 1876, the salaries of the said 
 surveyors are paid out of moneys provided by parliament ; and it is expedient 
 that the fees should be paid into the exchequer ; be it therefore enacted as 
 follows : 
 
 The fees paid in pursuance of section 7 of the M. S. Act Amendment Act, 1862, 
 shall cease to be carried to the account of the Mercantile Marine Fund and shall 
 be paid into the exchequer.
 
 43 & 44 VICT. c. 43. 927 
 
 5. All expenses incurred by general lighthouse authorities in pursuance of the Pro-visions as 
 ■Removal of Wrecks Act, 1877, shall be subject to the provisions contained in sec- incu^j^g'^^f^ 
 tions 422, 423, and 427 of the M. S. Act, 1854. removing 
 
 6. Such reasonable costs as the Board of Trade from time to time allow of J^^ffy. ^ 
 advertising or otherwise making known the establishment of or alterations in g^^^,^ of 'adver- * 
 foreign lighthouses, buoys, and beacons to owners and masters of and other tising notices of 
 persons interested in British ships shall be paid out of tlie Mercantile Marine ^°^'^}so. sea 
 rund. _ . 17 & 18 Vict. 
 
 7. Any payment made or forfeiture remitted or thing done before the passing of c. 104. 
 
 this Act which, if this Act had passed, would be legal, shall be deemed to have Application of 
 been legally made, remitted, or done. ments. ^'^^ ^^^' 
 
 MERCHANT SHIPPING (CARRIAGE OF GRAIN) ACT, 1880. 
 
 43 & 44 Vict. c. 43. 
 
 An Act to provide for the safe carriage of Grain Cargoes by Merchant Shipping. 
 
 [7th September, 1880.] 
 
 Be it enacted, &c., as follows : 
 
 1. This Act may be cited as the Merchant Shipping (Carriage of Grain) Act, fo^J^r^^tfo™'^ 
 1880, and shall be construed as one with the M. S. Act, 1854, and the Acts amend- 17 & is vict." 
 ing the same, and together with those Acts may be cited as the Merchant Shijaping c- 104, &c. 
 Acts, 1854 to 1880. 
 
 2. This Act shall come into operation on the 1st day of January, 1881 (which Commencement 
 day is in this Act referred to as the commencement of this Act). 
 
 3. Where a grain cargo is laden on any British ship all necessary and reason- ^a^e1^recaut*ions 
 able precautions (wliether prescribed by this Act or not) shall be taken in order to to prevent grain 
 prevent the grain cargo from shifting. cargo from 
 
 If such precautions have not been taken in the case of any such ship, the master ^ ' ^^' 
 of the ship and any agent of the owner who was charged with the loading of the 
 ship or the sending her to sea, sliall each be liable to a penalty not exceeding £300, 
 and the owner of the ship shall also be liable to the same penalty, unless he shows 
 that he took all reasonable means to enforce the observance of this section, and was 
 not privy to the breach thereof 
 
 4. Where a British ship laden with a grain cargo at any port in the Mediterranean Precautions 
 
 or Black Sea is bound to ports outside the Straits of Gibraltar, or where a British JJ^*"'^* ^^'^.^"^S 
 ship is laden with a grain cargo on the coast of North America, the following laden in port in 
 precautions to prevent the grain cargo from shifting shall be adopted ; that is to Mediterranean 
 
 ^'^Yi _ or on coast of 
 
 (a.) There shall not be carried between the decks, or, if the ship has more than North America. 
 2 decks, between the main and upper decks, any grain in bulk, except such as 
 may be necessary for feeding the cargo in the hold, and is carried in properly con- 
 structed feeders. 
 
 (b.) Where grain (except such as may be carried in properly constructed feeders) 
 is carried in bulk in any hold or compartment, and proper jarovision for filling up 
 the same by feeders is not made, not less than one-fourth of the grain carried in 
 the hold or compartment (as the case may be) shall be in bags supported on suit- 
 able platforms laid upon the grain in bulk : Provided that this regulation with 
 respect to bags shall not apply — 
 
 (i.) To oats, or cotton seed ; nor 
 
 (ii.) To a ship which is a sailing ship of less than four hundred tons registered 
 tonnage, and is not engaged in the Atlantic trade ; nor 
 
 (iii.) To a ship laden at a port in the Mediterranean or Black sea if the ship is 
 divided into 'compartments which are formed by substantial transverse 
 partitions, and are fitted with longitudinal bulkheads or such shifting
 
 928 
 
 M. S. (CAREIAGE 0¥ GEAIN) ACT, 1880. 
 
 Exemption from 
 precautions 
 specified in this 
 Act for sliips 
 laden in Medi- 
 terranean or 
 Black Sea, or 
 on coast of 
 North America. 
 Notice by 
 master of kind 
 and quantity of 
 grain cargo. 
 
 34 & 35 Vict. 
 
 c. no. 
 
 36 & 37 Vict. 
 
 C.85. 
 
 39 & 40 Vict, 
 c. 36, ss. 50, 61. 
 
 Penalty for false 
 statement in 
 notice. 
 
 Power of Board 
 
 of Trade for 
 
 enforcing of 
 
 Act. 
 
 17 & 18 Tict. 
 
 c. 104. 
 
 boards as hereafter iu this section mentioned, and if the ship does not 
 carry more than one-fourth of the grain cargo, and not more than 1,500 
 quarters in any one compartment, bin, or division, and provided that 
 each division of the lower hold is fitted -with properly constructed feeders 
 from the between decks ; nor 
 (iv.) To a ship in which the grain cargo does not exceed one-haK of the whole 
 cargo of the ship, and the rest of the cargo consists of cotton, wool, flax, 
 barrels or sacks of flour, or other suitable cargo so stowed as to prevent 
 the grain in any compartment, bin, or division from shifting, 
 (c.) Where grain is carried in the hold or between the decks, whether in bags 
 or bulk, the hold or the space between the decks shall be divided by a longi- 
 tudinal bulkhead or by sufficient shifting boards which extend from deck to deck 
 or from the deck to the keelson and are properly secured, and if the graia is in 
 bulk are fitted grain-tight with proper fillings between the beams. 
 
 (d.) In loading, the grain shall be properly stowed, trimmed, and secured. 
 In the event of the contravention of tliis section in the case of any ship, reason- 
 able precautions to prevent the grain cargo of that ship from shifting shall be 
 deemed not to have been taken, and the o-nmer and master of the ship and any 
 agent charged with loading her or sending her to sea shall be liable according to a 
 penalty under this Act. 
 
 Provided that nothing in this section shall exempt a person from any liability, 
 civil or criminal, to which he would otherwise be suljject for failing to adopt any 
 reasonable precautions which, although not mentioned in this section, are reason- 
 ably required to prevent grain cargo from shifting. 
 
 5. The precautions required by this Act to be adopted by ships laden with a 
 grain cargo at a port in the Mediterranean or Black Sea, or on the coast of Xorth 
 America, shall not apply to ships loaded in accordance with regulations for the 
 time being approved by the Board of Trade ; nor to any ship constructed and 
 loaded in accordance with any plan approved by the Board of Trade. 
 
 6. Before a British ship laden ^^'ith grain cargo at any port in the Mediterranean 
 or Black Sea, bound to ports outside the Straits of Gibraltar, or laden with grain 
 cargo on the coast of North America, leaves her final port of loading, or within 48 
 hours after leaAdng such port, the master shall deliver or cause to be delivered to 
 the British considar officer, or, if it is in H. M.'s dominions, to the principal ofiicer 
 of customs at that port, a notice stating — 
 
 (1.) The draught of water and clear side, as defined by section 5 of the M. S. 
 Act, 1871, and section 4 of the M. S. Act, 1873, of the said ship after the loading 
 of her cargo has been completed at the said last port of loading ; 
 
 (2.) And also stating the following particulars in respect to the grain cargo ; 
 namely, 
 
 (a.) The kind of grain and the quantity thereof, which quantity may be stated 
 in cubic feet, or in quarters, or bushels, or in tons weight ; and 
 
 (b.) The mode in which the grain cargo is stowed ; and 
 
 (c.) The precautions taken against shifting. 
 
 The ntaster shall also deliver a similar notice to the principal collector or other 
 proper officer of customs in the U. K., together with the report required to be 
 made by the Customs Consolidation Act, 1876, on the arrival of the ship in the U. K. 
 
 Every such notice shall be sent to the Board of Trade as soon as practicable by 
 the officer receiving the same. 
 
 If the master fails to deliver any notice required by this section he shall be 
 liable to a penalty not exceeding one hundred pounds : Provided always, that the 
 Board of Trade may, by notice published in the London Gazette, or in such other 
 way as it may deem expedient, exempt ships laden at any j)articular port or any 
 class of such ships from the provisions of this section. 
 
 7. Any master of a ship, who in any notice required by this Act wilfully makes 
 any false statement or wilfully omits any material particular, shall be liable to a 
 penalty not exceeding £100. 
 
 8. For the purpose of securing the observance of this Act, any officer ha'sdng 
 authority in that behalf from the Board of Trade, either general or special, shall 
 have the same power as an inspector appointed under the M. S. Act, 1854, and 
 shall also have power to inspect any grain cargo, and the mode in which the same 
 is stowed.
 
 INSTRUCTIONS TO EECBIVERS OF DROITS. 929 
 
 9. Every offence pmiishable i;nder this Act may be prosecuted summarily and Prosecution of 
 every penalty under this Act may be recovered and enforced summarily in like offences and 
 manner as offences and penalties under the M, S, Act, 1854, and the Acts amend- penalties." 
 ing the same. 17 & i8 Vict. 
 
 10. For the purposes of this Act— *'• ■"'^• 
 The expression " grain " means any corn, rice, paddy, pulse seeds, nuts, or nut Definitions. 
 
 kernals. 
 
 The expression " ship laden with a grain cargo " means a ship carrying a cargo 
 of which the jDortion consisting of grain is more than one-third of the registered 
 tonnage of the ship, and such third shall be computed, where the grain is 
 reckoned in measures of capacity, at the rate of 100 cubic feet for each ton of 
 registered tonnage, and where the grain is reckoned in measures of weight, at 
 the rate of two tons weight for each ton of registered tonnage. 
 
 11. Section 22 of the M. S. Act, 1876, is hereby repealed as from the com- J^f P®'''' "t , 
 
 „ 4. f ii • A i. ^ J. 39 & 40 Vict. 
 
 mencement of this Act : c. &o s, 22. 
 
 Provided that any offence against that section committed before the commence- 
 ment of this Act may be prosecuted, and the jjenalty recovered and enforced, in 
 like manner as if the said sectioa had continued to remain in force. 
 
 EXTRACT FROM INSTRUCTIONS FROM THE BOARD OF TRADE 
 TO THE RECEIVERS OF ADMIRALTY DROITS AS TO APPOR- 
 TIONMENT OF SALVAGE. 
 
 In all cases in which the aggregate amount payable for salvage has been settled 
 either by agreement or by legal decision, and does not exceed £200, the person who 
 is to pay it may, for the purpose of avoiding further litigation or difticulty, apply 
 to the receiver to receive it and distribute it amongst the several claimants. The 
 receiver will thereupon so receive and distribute it, unless there are any special 
 circumstances, such, for instance, as a claim for salvage on his own account, or 
 extraordinary questions of doubt or difficulty, which render it impossible for him 
 to do so. In all cases in which he refuses to act, he will at once report the case 
 and his reasons for refusing to the Board of Trade. Upon receiving the money 
 he will grant a certificate in the form marked (Wr. 7) in the Appendix, and pro- 
 ceed to apportion the amount among the salvors. In doing this he will avail him- 
 self of the assistance of the coastguard officer (if any) who has been present. A 
 copy of the certificate shall be kept by the receiver. Upon payment a receipt 
 must be taken from the various parties in form (Wr. 8) in the Appendix. 
 
 The principles which regulate the apportionment of a salvage reward amongst the 
 parties entitled thereto are in most cases comparatively simple. The cases which 
 will fall within the cognisance of receivers will generally be found to belong to 
 one or other of the following classes. "Where the salvage services have been 
 rendered : 
 
 (a) By revenue cruisers or coastguard men. 
 
 (b) By smacksmen, boatmen, or fishermen. 
 
 (c) By landsmen or beachmen. 
 
 (d) By the master and crew of some vessels. 
 
 (a) As regards the first class of salvors — the revenue cruisers and coastguard 
 men— rules have been laid down for the distribution of rewards of all kinds 
 amongst the officers and men engaged ; and the receivers should tlierefoie pay 
 over the whole amount due to the officers and men to the inspecting commander 
 of the district, who will distribute the same under the authority of the comp- 
 troller-general of the coastguard. A special report should be made by the inspect- 
 ing commander in cases where special skill or enterprise has been shown, or special 
 risk incurred by any individual, in order that directions may be issued, if neces- 
 sary, for giving a special reward. 
 
 30
 
 930 INSTRUCTIONS TO EEOEIVEES OF DROITS. 
 
 (b) With regard to the second class of salvors, the smacksmen, boatmen, and 
 fishermen, it will generally he found that there is a scale of distribution recog- 
 nised and agreed upon amongst them ; the smack or boat has a certain number of 
 shares, and "the remainder belongs to the master and crew in certain agreed pro- 
 portions. Where such a scale exists, it should be strictly adhered to in making 
 an apportionment of salvage, unless indeed any one or more of the men have 
 shown great skill and enterprise, or incurred greater risk than the others, when 
 an exception may sometimes be made in their favour. 
 
 Where, however, salvage has been awarded to the crew of a smack or boat, 
 amongst whom there is no such agreed scale of distribution, the receivers will do 
 well in making the apportionment to follow the scale of distribution generally 
 adopted amongst the smacksmen and boatmen in the neighbourhood, as such 
 agreements are generally found to be based upon principles of justice and equity, 
 and are such as best conduce to the interests of the community by whom they 
 have been adopted. 
 
 Where a cargo of fish has been spoiled or injured in rendering the salvage 
 service, care should be taken, in making the apisortionment, to ascertain upon 
 whom the loss will fall, and a corresponding allowance should be made to 
 them. 
 
 (c) With regard to the third kind of salvors — beachmen and landsmen — it will 
 generally be proper to divide the salvage ec|ually amongst them all. They will, 
 probably, in most instances, be found to belong to the same class in life, to have 
 incurred the same risk and the same amount of labour, and to have shown the 
 same skill in the pei'formance of the services. Should any of them have, how- 
 ever, greatly distinguished themselves, it will be proper to give them a larger 
 proportion of the salvage award. 
 
 {(l) The fourth class of cases, where the salvage services have been rendered 
 by a vessel and her master and creAV, will be found by the receivers to be the 
 most difficult, as the apportionment must depend upon a consideration of the 
 whole circumstances of the case, and whether the preservation of the property 
 is due principally to the services of the salving vessel herself, or to the personal 
 exertions and risk incurred by the master or the crew. As a general rule, it may 
 be stated tliat where the services have been chiefly performed by the vessel her- 
 self, as in the case of a derelict, where the property has been towed into a place 
 of safety, one-half of the salvage reward is given to the owners of the salving 
 vessel, from one-fourth to one-eighth to the master, and the remainder amoui^st 
 the crew in proportion to their wages. This is the scale of distribution usually 
 adopted where the salvage services have been performed by steamers, and where 
 it may generally be said that success is due chiefly to the power and construc- 
 tion of the vessel herself. Where, however, the principal part of the services 
 have not_ been rendered by the vessel, and where the vessel has not been exposed 
 to any risk or danger, but where the preservation of the property is due in 
 great measure to the personal exertions of the master and crew, then a much 
 smaller portion of the salvage is awarded to the owners of the vessel. It is, 
 however, a question of appreciation dependant entirely upon the circumstances 
 of each particular case, and in regard to which no positive general rule can be 
 laid down. The greater the risk to the master and crew, and the less the risk 
 to the vessel, the greater must be the proportion awarded to the actual salvors, 
 and the less to the owner of the salving vessel. 
 
 Finally, it should be observed that apprentices are entitled to share in an 
 allotment of salvage, and that the master or the owners of the vessel cannot 
 claim the shares which may fall due to their apprentices; and also, that if a 
 contract giving up or making over any claim to salvage to any person whatever 
 is made by any seaman or apprentice prior to the accruing of such claim, such 
 contract is absolutely void as being against equity, public policy, and positive 
 enactment. (See s. 233 of M. S. Act, 1854, ante 686.)
 
 FOEM OF TRANSCRIPT OP REGISTER. 
 
 931 
 
 Form No. 19. (a) 
 
 Transcript of Eegister for Transmission to Registrar-General of 
 Sliipping and Seamen. 
 
 Signal Letters (if any) 
 
 Official Number of Ship. 
 
 Name of Ship. 
 
 No., Date, and Port of 
 Registry 
 
 
 
 
 No., Date and Port of previous Registry (it any) 
 
 Whether 
 
 British or 
 
 Foreign Built. 
 
 Wliether a Sailing or 
 
 Steam Ship ; and if 
 
 a Steam Ship, how 
 
 propelled. 
 
 Where Built. 
 
 When Built. Name and Address 
 of Builders. 
 
 
 
 
 
 
 Number of Decks 
 Number of Masts 
 
 Rigged 
 
 Stern 
 
 Build 
 
 Galleries 
 
 Head 
 
 Framework 
 
 Length from fore part of stem, under 
 the bowsprit, to the aft side of the 
 head of the stern post 
 
 Main breadth to outside of plank 
 
 Depth in hold from tonnage deck to 
 ceiling at midships 
 
 Depth in hold from npper deck to 
 ceiling at midships, in the case of 
 three decks and upwards 
 
 Length of engine room (if any) 
 
 Feet. 
 
 Tenths. 
 
 Particulars op Engines (if any). 
 
 No. of 
 
 Engines. 
 
 Description. 
 
 Whether 
 
 British or 
 
 Foreign made. 
 
 When 
 made. 
 
 Name and 
 Address 
 of Makers. 
 
 Diame- 
 ter of 
 Cylin- 
 ders. 
 
 Length 
 
 of 
 Stroke. 
 
 No. of 
 Horses' 
 Power 
 (com- 
 bined ) 
 
 
 
 
 
 
 
 
 
 (a) This form has been obtained from the Custom House, 
 3o2
 
 932 
 
 TRANSGEIPT OF REGISTEK. 
 Particulars of Tonnage. 
 
 Gross Tonnage. 
 
 Under Tonnage Deck 
 Closed-in spaces above tlie 
 Tonnage Deck, if any ; 
 
 Space or spaces between 
 Decks 
 
 Poop 
 
 Forecastle 
 
 Round House 
 
 Other closed-in spaces, if 
 any, as follows : 
 
 Xo. of Tons. 
 
 Deduction Alloived. 
 
 On account of space required 
 for propelling power 
 
 On account of spaces occu- 
 pied by Seamen or Appren- 
 tices, and appropriated to 
 their use, and kept free 
 from Goods or Stores of 
 every kind, not being the 
 personal property of the 
 Crew 
 
 These spaces are the follow- 
 ing, \'iz. : — 
 
 No. of Tons. 
 
 Cubic Metres. 
 
 Total Deductions 
 
 
 Gross Tonnage ... 
 Deductions, as per Contra . . . 
 
 Registered Tonnage 
 
 
 
 
 
 Name of Master > 
 
 Certificate of 
 
 ) Service No. 
 
 ) Competency No. 
 
 Names, Residence and Description of the Owners, and ) 
 Number of Sixty -fourth Shares held by each ... ) 
 
 Dated 
 
 Registrar, 
 
 NoTK. — If there are more Owners than one the Registrar is requested to distin- 
 guish the Managing Owner by the letters " M.O." against his name. 
 
 N.B. — To be addressed in an Envelope to the Registrar-General 
 of Shipping and Seamen, 82, Basinghall Street, London, E.G. 
 
 The following is indorsed on this Form. 
 
 References of Transactions 
 
 Changes of Masters.
 
 COPY TRANSACTIONS SUBSEQUENT TO EEGISTEY. 
 
 933 
 
 Form No. 20. («) 
 
 Copy Transactions subsequent to Registry, for Transmission to Registrar- 
 General of Shipping and Seamen. 
 
 Official ; 
 Number of 
 
 Ship ; 
 
 Port of_ 
 
 Name of Ship_ 
 
 No. and Date of Registry 
 
 Number 
 
 of 
 Transac- 
 tion. 
 
 Col. 2. 
 
 Letter 
 denoting 
 Mortgages 
 and Cer- 
 tificates of 
 Mortgage. 
 
 Col. 3. 
 
 Name of 
 
 Person 
 
 from whom 
 
 Title is 
 
 derived. 
 
 Col. 4. 
 
 Number 
 
 of 
 Shares 
 affected. 
 
 Col. 5. 
 
 Col. 6. 
 
 Date of 
 Registry. 
 
 Nature and 
 Date of 
 Transac- 
 tion. 
 
 Col. 7. 
 
 Name, Residence, and 
 Occupati(]n of Trans- 
 feree, Mortgagee, or 
 other Peroou acquiring 
 Title or Power. 
 
 Col. 8. 
 
 Number and 
 Account of 
 subsequent 
 Transactions 
 showing how 
 Interest dis- 
 posed of. 
 
 Summary. 
 
 Col. 9. 
 
 Number 
 of 
 
 Transac- 
 tioi under 
 which Title 
 
 acquired. 
 
 Col. 10. 
 
 Names of 
 Owners. 
 
 Col. 11. 
 
 Moi-tgages and 
 
 Certificates of 
 
 Mortgage. 
 
 Col. 12. 
 
 Names of Mort- 
 gagees and 
 Attornies under 
 Certificates of 
 Mortgage. 
 
 Col. 13. 
 
 Number 
 
 of 
 Shares. 
 
 Col. 14. 
 
 Remarks. 
 
 _Registrar. 
 
 No. 362. — Copy of Transactions, &c., &c. 
 
 N.B. — To be addressed in an envelope to the Registrar-General 
 of Shipping and Seamen, 82, Basinghall Street, London, E.C. 
 
 (a) This form has been obtained from the Custom House.
 
 934 
 
 AGREEMENT AND 
 
 ^** Any Erasure, Interlineation, or Alteration in this Agreement xoill he void unless attested by 
 
 onade with the consent 
 
 Eng. 1. late A., AC, and M. Sanctioned by the Board of 
 
 AGREEMENT AND 
 
 (Foreign-going 
 The term "Foreign-going Ship" means every Shi2} employed in trading or going hetioeen some 
 situate beyond the follotcing limits, that is to say, the Coasts of the United Kingdom, the Islands 
 of Europe between the River Elbe and Brest inclusive. 
 
 Name of Ship. 
 
 Official No. 
 
 Port of 
 Registry. 
 
 Port No. and Date 
 of Reguiter. 
 
 Registered Tonnage. 
 
 Nominal Horse-power 
 of Engines (if any). 
 
 
 Gross. 
 
 Net. 
 
 
 
 
 
 
 
 
 
 
 Scale of Provisic ms to be allowed and served out to the Crew during the Voyage, in addition to the daily 
 Lime and Lem^n Juice and Sugar, or other anu-scorbutics in any case required by Law. 
 
 ssue of 
 
 
 Bread, 
 lb. 
 
 Beef, 
 lb. 
 
 Pork, 
 lb. 
 
 Flour, 
 lb. 
 
 Peas, 
 pint. 
 
 Rice, 
 lb. 
 
 Tea. 
 oz. 
 
 Coffee 
 oz. 
 
 Sugar, 
 oz. 
 
 Water, 
 qts. 
 
 
 
 Sunday 
 
 Monday 
 
 Tuesday 
 
 '\Vedne>day . . 
 
 Thursday . . 
 
 Friday 
 
 Saturday 
 
 
 
 
 
 
 
 
 
 
 
 
 
 SUBSTITUTES. 
 
 (e) The authority of the OAvner or Agent for the 
 allotments mentioned -within is in my possession. 
 
 ( Superintendent, Officer of Customs, 
 
 ( or Consular Officer. 
 
 (f) This is to be signed if such an authority has been produced, 
 and to be scored across in ink if it has not. 
 
 Date of fommencement of Voyage. 
 
 Port at which Voyage commenced. 
 
 These Columns \ 
 
 Date of Termination of Voyage. 
 
 
 
 
 
 
 (n) This form ends p. 941. 
 
 (6) Here tile voyage is to be described, and the places named at which the ship is to touch, or, 
 
 (c) Here are to be inserted the numbers of anv of the Eesrulations for preserving discipline 
 
 v r. Ti ' c ^^'^ ^^'^ ^^^ other stipulations may be inserted" to which the parties acree, and which are not 
 
 ■^•l"'— Tula fonn must not be unstitched. No leaves may be taken out of it, and none may be added or substituted. 
 
 during the voyage than the number for whom signatures are provided
 
 ACCOUNT or CEEW. 
 
 935 
 
 some superintendent of a mercantile marine office, officer of customs, consul, or vice-consul, to be 
 
 of the persons interested. 
 
 Trade, July, 1869. In pursuance of 17 & 18 Vict. c. 104. 
 
 ACCOUNT OF CREW. («) 
 
 Ship.) 
 
 place or places in the United Kingdom, and some place or places 
 of Guernsey, Jersey, Sarlc, Alderney, and Man, and the Continent 
 
 AGREEMENT No. 
 
 Executed in 
 Eight Pages. 
 
 Engagement Fee... 
 Discharging Fee... 
 
 £ 
 
 s. 
 
 d. 
 
 
 
 
 1 
 
 
 
 REGISTERED MANAGING OWNER, 
 
 or person appointed under the 
 
 38 & 39 Vict. 0. 88. 
 
 No. of Seamen 
 
 for whom 
 
 accommiidarion 
 
 is certifiefl. 
 
 (30 & 31 Vict. 
 
 C. 124.) 
 
 Distance in feet and inches between centre of 
 
 Maximum lo.ad line disc and upper edge 
 
 of line indicating the position of the 
 
 
 Name. 
 
 Address. (State No. of House, 
 .Street, and Town.) 
 
 First Deck above it. 
 
 Second Deck above It. 
 
 
 
 
 
 ft. in. 
 
 ft. in. 
 
 The several Persons whose names are hereto subscribed, and whose descriptions are contained 
 on the other side or sides, and of whom are engaged as sailors, hereby agree to 
 
 serve on board the .said ship, in the several capacities expressed against their respective names, 
 on a voyage from (6) 
 
 And the crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, 
 and to be at all times diligent in their respective duties, and to be obedient to the lawful com- 
 mands of the said master, or of any person who shall lawfully succeed him, and of their superior 
 officers, in everything relating to the said ship and the stores and cargo thereof, whether on board, 
 in boats, or on shore : in consideration of which services to be duly performed, the said master 
 hereby agrees to pay to the said crew as wages the sums against their names respectively expressed, 
 and to supply them with provisions according to the above scale : And it is herel)y agreed, that 
 any embezzlement or wilful or negligent destruction of any part of the ship's cargo or stores shall 
 be made good to the owner out of the wages of the person guilty of the same : Au'l if any person 
 enters himself as qualified for a duty which he proves incompetent to perfn^m, his wages shall 
 be reduced in proportion to his incompetency : And it is also agreed, that the regulations autho- 
 rised by the Board of Trade, which are printed herein, and numbered (c) 
 
 are adopted by the parties hereto, and shall be considered as embodied in this agreement : And 
 it is also agreed, that if any member of the crew considers himself to be aggrieved by any breach 
 of the agreement or otherwise, he shall represent the same to the master or officer in charge of 
 the ship in a quiet and orderly manner, who shall thereupon take such steps as the case may 
 require : And it is also agreed, that (c?) 
 
 In. Witness whereof the said parties have subscribed their Names on the other side or sides 
 hereof on the days against their respective Signatures mentioned. 
 
 Signed by 
 
 Master, on the 
 
 day of . 
 
 18 
 
 to be filled up at the end of the Voyage. 
 
 Port at which 
 Voyage terminated. 
 
 Date of Delivery 
 
 o.f Lists to 
 Superintendent. 
 
 I hereby declare to the truth of the Entries in this 
 Agreement and Account of Crew, &c. 
 
 Master. 
 
 If that cannot be done, the general nature and probable length of the voyage is to be stated. 
 
 issued by the Board of Trade and printed on the last page hereof which the parties agree to adopt. 
 
 contrary to law. 
 
 Care should be taken at the time of engagement that a sufBciently large form is used. If more men are engaged 
 
 in this form, an additional form Eng. 1. should be obtained and used.
 
 936 
 
 AGREEMENT AND 
 
 Name of 
 
 1 
 
 o 
 
 c 
 p 
 
 S 
 
 S 
 
 
 
 
 
 PARTICULARS OP ENGAGEMENT. 
 
 
 
 
 IGNATURES OF CREW. 
 1 
 
 Date 
 
 of 
 
 Birth. 
 
 2 
 
 Town or 
 County 
 where 
 Bom. 
 
 3 
 
 d 
 
 m 
 
 C C S-i 
 
 Jo O 
 = o 
 
 4 
 
 Ship in which he 
 last served. 
 
 Date and Place 
 
 of joining this 
 
 Ship. 
 
 ^ tS J, 
 
 a o 
 9 
 
 o 
 i- 
 
 — a 
 w o 
 
 o 
 
 a 
 
 10 
 
 
 State Kame, 
 
 and Official Ko. 
 
 or Poit she 
 
 belonged to. 
 
 5 
 
 Year. 
 G 
 
 Date. 
 
 7 
 
 Place. 
 8 
 
 
 1 
 2 
 
 
 
 
 
 
 
 
 
 
 
 
 Master to sign first. 
 
 
 
 
 
 
 
 
 Master. 
 
 
 
 ACCOUNT OF APPRENTICES ON BOARD (IF ANY). 
 
 Christian and Surnames of the 
 Apprentices at full length. 
 
 1 
 
 Date of 
 Birth. 
 
 2 
 
 Registry 
 of Indenture. 
 
 Registry 
 of Assignment. 
 
 Date, Place, and Cause of leaving 
 
 this Ship, or ol Death. 
 
 To le filled tip by the Master. 
 
 Date of 
 3 
 
 Port of 
 4 
 
 Date of 
 5 
 
 Port of 
 6 
 
 Date. 
 
 7 
 
 Place. 
 8 
 
 Cause. 
 9 
 
 
 
 
 
 
 
 
 
 PARTICULARS RELATING TO 
 
 WAGES AND EFFECTS OF SEAMEN AND APPRENTICES DECEASED DURING 
 
 THE VOYAGE. 
 
 {Taken from the Official Log.) 
 
 Note — Particulars of the Moneys due to each deceased Seaman, and of his Clothes and Effects, 
 and of Deductions (if any), are to accompany this Return in a separate Form W & E 1 
 (late KK.), which will be furnished by the Superintendent. If any Master fails to give 
 a true account of these particulars, he Avill he liable to forfeit a sum not exceeding treble 
 the value of the money and effects not accounted for, or to a penalty not exceeding ^60, 
 
 c 
 11 
 
 Is. 
 
 ci 
 1 
 
 Christian and Surname 
 of Deceased. 
 
 2 
 
 Certificates, if any. 
 
 Net Am 
 
 and total 
 
 mnt of "Wages. 
 Proceeds of Sale 
 
 Paitieulars of 
 I.ffects (if any) 
 
 delivered to 
 Superintendent 
 Officer of » us- 
 
 toms, or Consul, 
 as per Account 
 
 in Porm W & E 1. 
 
 6 
 
 Description 
 State whether 
 "Mate's," •• Engi- 
 neer's," -'Xaval 
 Resen'e," ac. 
 
 3 
 
 Numbers. 
 4 
 
 of Kffccts paid to 
 
 Superintendent, Officer 
 
 of Cuctinis. or Consul, 
 
 a? per Account 
 
 in Form W & E 1. 
 
 a 
 
 
 
 
 
 
 

 
 ACCOUNT OF CREW — Continued. 
 
 937 
 
 Shi'fi _ 
 
 AGREEMENT No. 
 
 
 PARTICULAKS OF DISCHARGE, &C. 
 
 To be filled in by the Master 
 
 upon the Discharrjc. Death, or 
 
 Desertion of any Member 
 
 of his Crew. 
 
 RELEASE (late M.) 
 
 c 
 
 S 
 
 g 
 s 
 
 o 
 
 
 On ° 
 
 C 'St 
 
 11 
 
 ^! 
 
 si 
 
 c s 
 12 
 
 o ^ 
 
 2 § 
 
 ^^ 
 
 13 
 
 ° 5 '■■ 
 
 i2s a 
 
 ci - o 
 
 Hi 
 
 14 
 
 Date, Place, and Cause 
 
 of leaving this Ship, 
 
 or of Death. 
 
 "S 
 '3 
 
 !l 
 
 1° 
 
 "3 
 18 
 
 We the undersigned Mem • 
 bers of the Crew of this 
 Ship, do hereby release this 
 Ship, and the Master and 
 Owner or Owners tlicreof, 
 from all Claims for Wages 
 or otherwise in respect of 
 this Voyage. 
 
 Signatures of Crew (each 
 to be on the Line on which 
 he signed in Col. 1). 
 
 19 
 
 Signature or Initials of 
 Superintendent, Con- 
 sul, or Officer of 
 g Cu.stoms before whom 
 the Balance of Wages 
 was paid and 
 Release signed. 
 
 
 Date. 
 15 
 
 Place. 
 16 
 
 Cause, 
 (a) 
 
 17 
 
 
 ~ 
 
 - 
 
 - 
 
 — 
 
 - 
 
 - 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 2 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 PARTICULARS OP ALL 
 
 MARRIAGES 
 
 iHAT HAVE OCCURRED ON BOARD DURING^ THE VOYAGE. 
 
 {Taken from the Official Log.) 
 
 i^ofe.— Section 282 of the Merchant Shipping Act, 1854, requires the Master of the Ship to 
 enter in his Official Log the particulars of every Marriage that has taken place on board ; 
 and sections 273 and 274 require that a List of such Marriages should be made out and 
 delivered to a Superintendent of a Mercantile Marine Office in the United Kingdom, 
 
 Date 
 
 when 
 
 Married. 
 
 1 
 
 Christian and 
 
 Surnames of both 
 
 Parties. 
 
 Date 
 
 of 
 Birth. 
 
 3 
 
 State whether 
 
 Single, Widow, or 
 
 Widower. 
 
 4 
 
 Profession 
 
 or 
 Occupation. 
 
 5 
 
 Father's Christian 
 
 and 
 
 Surname, 
 
 6 
 
 Profession or 
 Occupation 
 of Father. 
 
 7 
 
 
 
 
 
 
 
 
 
 CERTIFICATES 
 
 OR INDORSEMENTS MADE BY CONSULS OR BY OFFICERS IN BRITISH POSSESSIONS ABROAD. 
 
 (a) If any member of the crew enters Her Majesty's serriee, the name of the Queen's ship into which he enters is to 
 he stated under the head of " Cause of leaving the ship," thus "H.M.S. Revenge ;" and the Other causes of leavlns the 
 ship should be briefly stated thus, " Discharged," " Deserted," " Left sick," " Died;"
 
 938 
 
 AGREEMENT AND 
 
 KEGULATIONS FOR MAINTAINING DISCIPLINE SANCTIONED BY 
 THE BOAED OF TRADE IN PURSUANCE OF THE MERCHANT 
 SHIPPING ACT, s. 149. 
 
 These Regulations are distinct from and in addition to those contained in the 
 Act, and are sanctioned but not universally required by law, AU or any of them 
 may be adopted by agreement between a master and his crew, and thereupon the 
 offences specified in such of them as are so adopted wiU be legally punishable by 
 the appropriate fines or punishments. 
 
 These regulations are all numbered, and the numbers of such of them as are 
 adopted must be inserted in the space left for that purpose in the agreement, 
 page 1, and the folloA^ig copy of these regulations must be made to correspond 
 with the agreement by erasing such of the regulations as are not adopted. If 
 the agreement is made before the superintendent of a mercantile marine ofl&ce, 
 ]iis signature or initials must be placed opposite such of the regulations as are 
 adopted. 
 
 For the purpose of legally enforcing any of the following penalties, the same 
 steps must be adopted as in the case of other offences punishable rmder the Act ; 
 that is to say, a statement of the oftence must, immediately after its commission, 
 be entered in the official log book by the direction of the master, and must at the 
 same time be attested to be true by the signatures of the master and the mate, or 
 one of the crew ; and a copy of such entry must be furnished, or the same must 
 be read over, to the offender, before the ship reaches any port or departs from the 
 port at which she is : and an entry that the same has been so furnished or read 
 over, and of the reply, if any, of the oftender, must be made and signed in the 
 same manner as the entry of the oftence. These entries must, upon discharge of 
 the offender, be shown to the superintendent of a mercantile marine office before 
 whom the offender is discharged ; and if he is satisfied that the oftence is proved, 
 and that the entries have been properly made, the fine must be deducted fi'om the 
 off'endei-'s wages, and paid over to the superintendent. 
 
 If, in consec)uence of subsequent good conduct, the master thinks fit to remit or 
 reduce any fine upon any member of his crew which lias been entered in the 
 official log, and signifies the same to the superintendent, the fine shall be remitted 
 or reduced accordingly. If wages are contracted for by the voyage or by share, 
 the amount of the fines is to be ascertained in the manner in which the amount of 
 forfeiture is ascertained in similar cases under sect. 252. 
 
 Ko. 
 
 F F E >v- C E . 
 
 Amount of Fine 
 or Punishment. 
 
 signature 
 of Superin- 
 tendent. 
 
 1 
 4 
 
 Striking or assaulting any person on 
 board or belonging to the ship (if not 
 otherwise prosecuted) 
 
 Bringing or having on board spirituous 
 liquors 
 
 Drunkenness. First Oftence 
 
 Do. Second and for each 
 subsequent offence ... 
 
 Taking on board and keeping possession 
 of any fire-arms, knuckle-duster, 
 loaded cane, slung-shot, sword stick, 
 bowie knife, dagger, or any other 
 oft'ensive weapon, or oftensive instru- 
 ment, without the concurrence of the 
 master, for every day diu'ing which a 
 seaman retaius such weapon or in- 
 strument 
 
 Five Shillings. 
 
 Five Shillings. 
 Five Shillings. 
 
 Ten Shillings. 
 Five Shillings. 

 
 ACCOUNT OF CEEW — Continued. 939 
 
 INSTRUCTIONS TO MASTERS. 
 
 Agreements. 
 
 1. The Mercliant Shipping Act requires the master of every ship, cxcejji ships of 
 less than eighty tons exclusively em2:iloyecl in the coasting trade, to enter into an agree- 
 ment Avith every seaman whom he carries to sea as one of his crew. The term 
 " seaman " includes every person, except masters, pilots, and apprentices (duly 
 indentured and registered) employed or engaged in any capacity on board any ship. 
 
 2. In order to enable the seamen to know the contents of the agreement, the 
 master, at the commencement of the voyage is bound under a penalty of ^5 to have 
 a legible copy (omitting the signatures) placed in an accessible part of the ship. 
 
 3. All alterations in any agreement (except additions in shipping substitutes) are 
 inoperative unless proved to have been made with the consent of all persons 
 interested, by the written attestation of a superintendent of a mercantile marine 
 office, justice, officer of customs, consul, or vice-consul. 
 
 4. Fraudulently altering, or making any false entry in, or delivering a false copy 
 of any agreement, or being party to such an act, may be punished by the infliction 
 of a penalty not exceeding £100, or by imprisonment with or Avithout hard labour 
 for any period not exceeding six months. 
 
 5. The crews of all British foreign-going ships must be engaged in the United 
 Kingdom in the presence of a superintendent of mercantile marine, who will read 
 over and explain the agreement to the seamen before they are allowed to sign it. 
 
 6. Steamers, fruit vessels, and other foreign-going vessels, which make short and 
 frequent voyages and keep the same crews, are allowed to have running agree^ 
 ments, lasting like those of home-trade ships for six months. The masters of these 
 vessels are thus relieved from the necessity of discharging and re-engaging their 
 crews at the mercantile marine office on each return to the United Kingdom. If 
 the crew are engaged under a rumiing agreement, the master, upon every return of 
 the ship to the United Kingdom, is to deposit his agreement at the mercantile 
 marine office, and is to discharge or engage any of his crew before the super- 
 intendent. Before the ship leaves port, the master is required to endorse on the 
 agreement whether any changes have been or are intended to be made in his crew. 
 Any false statement renders the master liable to a penalty not exceeding £20. 
 
 Engagement of Creics and Seamen in the United Kingdom^ 
 
 7. Whenever a master of a ship is desirous of making use of the mercantile 
 marine office for the purpose of selecting his crew he must inform the superin- 
 tendent, so that a notice may be published for the information of those men who 
 are seeking employment. 
 
 8. In ail cases the superintendent shoilld have at least six hours' notice of the 
 time at which the master and crew are to attend to sign the agreement. Before 
 the engagement of the crew is proceeded with, the master must — 
 
 (a.) Produce the certificates for himself, his mates, and his engineers (if any). 
 
 (b.) Pay all the fees. 
 
 (c.) Produce the authority of his owners or their agents for his issuing allot- 
 ment notes to his crew. 
 
 {ct) Produce the apprentices destined for the voyage together Avith their 
 indentures. 
 
 9. Upon the master complying with the above regulations, the superintendent 
 will, when the engagement of the crew has been completed, give him a certificate 
 for clearance outwards. 
 
 10. Superintendents will give the like certificate to masters of ships who have 
 entered into running agreements Avith their creAvs, upon their complying A^ith the
 
 940 AGEEEMENT AND 
 
 regulations (6) above, and producing at the mercantile marine office the certificate 
 of any mate or engineer engaged during or subsecj^uent to the last voyage. 
 
 11. The engagement of substitutes for seamen who have died or left the ship 
 within twenty-four hours of her putting to sea is to be made before a superin- 
 tendent if practicable, but if not the master as soon as possible is to have the 
 agreement read over and explained to the substitutes in the presence of a witness 
 who is to attest their signatures. 
 
 12. Carrying any seaman to sea without entering into an agreement subjects 
 the master of a foreign-going ship to a penalty of £5. 
 
 13. The master of a foreign-going ship incurs a jjenalty of £5 if he does not 
 report to the nearest mercantile marine office any changes in his crew before he 
 finally leaves the United Kingdom. 
 
 Ports Abroad. 
 
 14. Upon the arrival of the ship at any foreign port where there is a British 
 consular officer, or at any port in any British possession abroad, the master is 
 bound imder iifenalty of ticenty i^und^ to deliver within forty-eight hours of the 
 ship's arrival (if the ship remains forty-eight hours at the port, and is not a pas- 
 senger ship), to the consular officer, or the chief officer of customs, the agi'eement 
 and all indentures and assignments of apprenticeships. These the officer will 
 keep during the ship's stay at the port, and will, withiu a reasonable time before 
 the ship's departure, return them to the master, with a certificate stating when 
 they were delivered and returned. 
 
 15. The engagement or discharge of any seaman abroad must be made before 
 the British consul in a foreign port, or before the customs officer in a British pos- 
 session, who ^vill endorse upon the agreement a certificate accordingly. If this 
 certificate be not made the master of the ship is liable to a penalty. See also paras. 
 20, 21, and 22 below. 
 
 Return to the United Kmgdom. 
 
 16. The crew of every British foreign-going ship discharged in the United 
 Kingdom must be discharged and receive their wages in the presence of a superin- 
 tendent of a mercantile marine office. An infringement of this law renders the 
 master or owner liable to a penalty of ^10. 
 
 17. In all cases in which crews are to be discharged at the mercantile marine 
 office, at least twenty-four hours' notice should be given to the superintendent by 
 the master or owner. 
 
 18. Within forty-eight hours after the ship's amval at her final port of destina- 
 tion in the United Kingdom, or upon the discharge of the crew, whichever first 
 happens, the master is to deliver to the superintendent of the mercantile marine 
 office the agreement with a list of the crew and official log book, and accounts of 
 the wages and effects of any seaman or apprentice who has died on board diu'- 
 ing the voyage, whether he formed part of the crew or not, any eftects remaining 
 unsold, and the balance of wages or other moneys belonging to any such seaman 
 or apprentice. When the eSects of a deceased seaman have been sold on board a 
 vessel, the proceeds of such sale must in every case be handed over to the superin- 
 tendent, without deduction, unless such proceeds have already been paid by the 
 master to a consul or colonial officer on behalf of the Board of Trade. The 
 master is also to deliver to the superintendent the certificates (mates, engineers, 
 or seamen's, E 2, or E, V 2) of any who have died or deserted during the voyage. 
 The superintendent wiU then give a certificate for the purpose of clearance 
 inwards. 
 
 19. The master is to give to every seaman (or leave with the superintendent 
 on his behalf) an account, on a form sanctioned by the Board of Trade, of his 
 wages, and of all deductions to be made therefi-om, at least twenty-four hours 
 before the time of payment or discharge, imder a penalty of £5 for non-compli-
 
 ACCOUNT OF OEEW — Continued. 941 
 
 ance. Deductions for fines, forfeitures, &c., whicli are sought to be made in tliis 
 account must be proved by proper entries made in the oificial log book. 
 
 20. Upon paying oft" or discharging any seaman, the master is bound under a 
 penalty of £10 to give the seaman a certificate of discharge, and the master is also 
 bound\;nder a penalty of £20 to deliver to any certificated mate or engineer upon 
 
 his discharge his certificate of competency or service. « 
 
 21. A statement of the conduct, character, and qualification of each member 
 of the crew, or a statement that he declines to give an opinion on such particulars, 
 is to be entered and signed by the master in the oificial log book as required by 
 the Act. 
 
 22. Upon payment of wages and settlement of disputes (if any) being efi"ected, 
 the officer before whom the men are discharged will require the crew to sign 
 in his presence a release from all claims in respect of the voyage just finished, 
 {See page 3, cols. 19 and 937.)
 
 942 
 
 OFFICE copy OF AGREEMENT 
 
 OFFICE COPY (to be forwarded to 
 *^* Any Erasure, Interlineation, or Alteration in this Agreement will be void, unless attested by 
 
 to be made icith the consenf 
 Eng. 1, late A,, A.C, and M, Sanctioned by the Board of 
 
 AGREEMENT AND 
 (foreign-going 
 
 The term ^^Foreign-going Ship" means every Ship employed in trading or going between some 
 places situate beyond the folloiv-ing limits, that is to say, the Coasts of the United Kingdom, the 
 and the Continent of Europe beticeen the River Elbe and Brest inclusive. 
 
 Name of Ship. 
 
 Official Jfo. 
 
 Port of 
 Registry. 
 
 Port No. and Date 
 of Register. 
 
 Registered Tonnage. 
 
 Nominal Horse-power 
 of Engines (if any). 
 
 Gross. 
 
 Net. 
 
 
 
 
 
 
 
 
 Scale of Provisions to be allowed and served out t ' the Crew during the Voyage, in addition to the daily Issue of 
 Lime and Lemon Juice and Sugar, or oxher anti-scorbutics in any case requii-ed by Law. 
 
 
 Bread 
 
 Beef 
 
 Pork 
 
 Flour 
 
 Peas 
 
 Rice 
 
 Tea 
 
 Coffee 
 
 Sugar 
 
 Water 
 
 
 lb. 
 
 lb. 
 
 lb. 
 
 lb. 
 
 pint. 
 
 lb. 
 
 oz. 
 
 oz. 
 
 oz. 
 
 qts. 
 
 Sunday 
 
 
 
 
 
 
 
 
 
 
 
 Monday 
 Tuesday 
 Wednesday .. 
 Thursday . . 
 Friday 
 
 
 
 
 
 
 
 
 
 
 1 
 
 Saturday 
 
 
 
 
 
 
 
 
 
 
 
 SUBSTITUTES. 
 
 (e)_The authority of the Owner or Agent for the allotments 
 mentioned within is in my possession. 
 
 Superintendent, Officer of Chistoins, 
 
 or ConsiUar Officer. 
 
 (e) This is to be signed if such an authority has been produced, and to be 
 scored across in ink if it has not. 
 
 In "Witness whereof the 
 against their respective 
 
 Signed by 
 
 Date of Commencement of 
 Voyage. 
 
 Port at which Voyage 
 commenced. 
 
 
 
 I hereby certify the above to be a true 
 subscribed, and that the entries con- 
 agreement entered into before me. 
 
 (a) Now Registrar General of Shipping and Seamec. 36 & 36 Viet. c. 73, s. 4, ante. p. 889. 
 
 (6) Here the voyage is to be described, and the places named at which the ship is to touch, or, if 
 
 (f) Here are to be inserted the numbers of any of the regulations for preserving discipline 
 
 „„ rj,,., (f') Here any other stipulations may be inserted to whicirthe parties aeree, and which are 
 
 iN.n.— ibis form must not be unstitched. No leaves may be taken out of it, and none may be added or substituted. 
 
 during the voyage than the number for whom signatures are provided
 
 AND ACCOUNT OP CEEW, 
 
 94.3 
 
 the Kegistrar General of Seamen) (a). 
 
 some Superintendent of a Mercantile Marine Office, Officer of Ciistoms, Consul, or Vice-Consul, 
 
 of the persons interested. 
 
 Trade, July, 1869. In pursuance of 17 & 18 Vict. c. 104. 
 
 ACCOUNT OF CREW. 
 
 SHIP.) 
 
 2)lace or places in the United, Kingdom and some place or 
 Islands of Cr-uernsey, Jersey, Sark, Alderney, and Man, 
 
 AGEEEMENT No. 
 Original Executed in Eight pages 
 
 Engagement Fee 
 
 £ 
 
 s, 
 
 d. 
 
 registered managing owner, 
 
 or person appointed under the 
 38 &. 39 Vict. c. 88. 
 
 No. of Seamen 
 
 for whom 
 
 accommodation 
 
 is certified. 
 
 30 &. 31 Vict. 
 
 c. 124. 
 
 Distance in feet and inches between centre of 
 
 Maximum load line disc and upper edge of 
 
 line indicating the position of the 
 
 Name. 
 
 Address. (State No. of 
 House, Street, and Town.) 
 
 First Deck, above it. 
 
 Second Deck, above it. 
 
 
 
 
 ft. in. 
 
 ft. in. 
 
 The several persons whose names are hereto subscribed, and whose descriptions are contained 
 on the other side or sides, and of whom are engaged as sailors, hereby agree to 
 
 serve on board the said ship, in the several capacities expressed against their respective names, 
 on a voyage from (b) 
 
 And the crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, 
 and to be at all times diligent in their respective duties, and to be obedient to the lawful com- 
 mands of the said master, or of any person who shall lawfully succeed him, and of their superior 
 officers, in everything relating to the said ship and the stores and cargo thereof, whether on 
 board, in boats, or on shore : in consideration of which services to be duly performed, the said 
 master iiereby agrees to pay to the said crew as wages the sums against their names respectively 
 expressed, and to supply them with provisions according to the above scale : And it is hereby 
 agreed, that any embezzlement or wilful or negligent destruction of any part of the ship's cargo 
 or stores shall be made good to the owner out of the wages of the person guilty of the same : 
 And if any person enters himself as qualified for a duty which he proves incompetent to per- 
 form, his wages shall be reduced in proportion to his incompetency : And it is also agreed, that 
 the regulations authorized by the Board of Trade, which are printed herein and numbered (c) 
 are adopted by the parties hereto, and shall be considered as embodied in this 
 agreement : And it is also agreed, that if any member of the crew considers himself to be 
 aggrieved by any breach of the agreement or otherwise, he shall represent the same to the master 
 or officer in charge of the ship in a quiet and orderly manner, who shall thereupon take such 
 steps as the case may require : And it is also agreed, that {d) 
 
 said parties have subscribed their names on the other side or sides hereof on the days 
 signatures mentioned. 
 
 Master, on the day of 18 . 
 
 copy of the agreement entered into by the persons whose signatures or marks are herein 
 tained in this office copy are the same in every respect as those contained in the original 
 
 Superintendent. 
 
 that cannot be done, the general nature and probable length of the voyage is to be stated. 
 
 issued by the Board of Trade and printed on the last page hereof which the parties agree to adopt. 
 
 not contrary to law. 
 
 Care should be taken at the time of engagement that a sufficiently large form is used. If more men are engaged 
 
 in this form, au additional form Eng. I. sliould be obtained and used.
 
 Hi 
 
 OPFICE COPT Op AGEEEMENT 
 
 Name of 
 
 i 
 
 1 
 
 § 
 
 c 
 S 
 
 PARTICULARS OF ENGAGEMENT 
 
 SIGNATUKES OP 
 CREW. 
 
 1 
 
 Date 
 
 of 
 Birth. 
 
 2 
 
 Town or 
 
 County 
 
 wjiere 
 
 bom. 
 
 3 
 
 •So 
 ri 
 
 4 
 
 Ship in which he 
 last served. 
 
 Date and Place 
 
 of joining this 
 
 Ship. 
 
 c ■^■^ 
 
 Ml 
 
 Ire 
 
 9 
 
 o 
 
 — i 
 
 ^ S 
 
 o 
 
 s 
 
 10 
 
 
 State Name, 
 
 and OfHclal No. 
 
 or Port she 
 
 belonged to. 
 
 .5 
 
 Year. 
 6 
 
 Date. 
 
 Place. 
 
 8 
 
 1 
 2 
 
 
 
 
 
 
 
 
 
 
 
 Master to sign first. 
 
 
 
 
 
 
 
 
 
 
 
 
 i 
 
 1 
 
 
 
 
 
 
 
 ACCOUNT OF APPRENTICES ON BOAED (IF ANY.) 
 
 Christian and Surnames of the 
 Apprentices at full length. 
 
 1 
 
 Date of 
 Birth. 
 
 2 
 
 Registry of Indenture. 
 
 Registry of Assignment. 
 
 Date of 
 3 
 
 Port of Date of 
 4 5 
 
 Port of 
 6 
 
 
 
 
 
 
 
 BEGULATIONS FOR MAINTAINING DISCIPLINE, SANCTIONED BY THE BOARD 
 OF TRADE IN PURSUANCE OF THE MERCHANT SHIPPING ACT, s. 149, 
 
 These regulations are distinct from and in addition to those contained in the Act, and are 
 sanctioned but not universally required by law. All or any of them may be adopted by agree- 
 ment between a master and his crew, and thereupon the offences specitied in such of them as 
 are so adopted will be legally punishable by the appropriate fines or punishments. 
 
 These regulations are all numbered, and the numbers of such of them as are adopted must be 
 inserted in the space left for that purpose in the agreement, page 1, and the following copy of 
 these regulations must be made to correspond with the agreement by erasing such of the regu- 
 lations as are not adopted. If the agreement is made before the superintendent of a mercantile 
 marine office, his signature or initials must be placed opposite such of the regulations as are adopted. 
 
 For the purpose of legally enforcing any of the following penalties, the same steps must be 
 adopted as in the case of other offences punishable under the Act ; that is to say, a statement of 
 the offence must, immediately after its commission, be entered in the official log book by the 
 direction of the master, and must at the same time be atttsted to be true by the signatures of 
 the master and the mate, or one of the crew ; and a copy of such entry must be furnished, or 
 the same must be read over, to the offender, before the ship reaches any port or departs from 
 the port at which she is ; and an entry that the same has been so furnished or read over, and
 
 AXD ACCOUNT OP cuEV^—Gontinued. 
 
 945 
 
 Ship 
 
 Agreement Xo. 
 
 
 
 
 
 
 ADDRESS OP MASTER 
 OR CREW. 
 
 15 
 
 
 ' Amount of 
 Wages per Week, 
 Calendar Montli, 
 Share, or Voyage. 
 
 11 
 
 Amount of 
 
 Wages advanced 
 
 on Entry. 
 
 13 
 
 Amount of 
 
 Weekly or Monthly 
 
 Allotment. 
 
 13 
 
 Signature or 
 Initials of Superin- 
 tendent, Consul, or 
 Officer of Customs. 
 
 14, 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 1 1 
 
 
 of the reply, if any, of the offender, must be made and signed in the same manner as the entry 
 of the oftence. These entries must, upon discharg'-. of the offender, be shown to the superin- 
 tendent of a mercantile marine office before whom the offender is discharged ; and if he is 
 satisfied that the oftence is proved, and that the entries have been properly made, the fine must 
 be deducted from the offender's wages, and paid over to tlie superintendent. 
 
 If, in consequence of subsequent good conduct, the master thinks fit to remit or reduce any 
 fine upon any member of his crew which has been entered in the official log, and signifies the 
 same to the superintendent, the fine shall be remitted or reduced accordingly. If wages are 
 contracted for by the voyage or by share, the amount of the fines is to be ascertained in the 
 manner in which the amount of forfeiture is ascertained in similar cases under sect. 252, 
 
 Xo. 
 
 OFFENCE. 
 
 Amount of Pine or 
 Punishment. 
 
 Signature of 
 Superintendent. 
 
 1 
 
 Striking or assaulting any person on board 
 or belonging to the ship (if not otherwise 
 
 
 
 
 prosecuted) 
 
 Five Shillings. 
 
 
 2 
 
 Bringing or having on board spirituous 
 
 
 
 
 liquors 
 
 Five Shillings. 
 
 
 ( 
 
 Drimkeimess. First Offence 
 
 Five Shillings. 
 
 
 3 
 
 Do. Second and for each, sub- 
 
 
 
 \ 
 
 sequent offence ... ... 
 
 Ten ShiUings. 
 
 
 4 
 
 Taking on board and keeping possession of 
 any fire-arms, knuckle-duster, loaded cane, 
 slung-shot, sword-stick, bowie knife, 
 dagger, or any other offensive weapon, or 
 offensive instrument, without the concur- 
 rence of the master, for every day during 
 which a seaman retains such weapon or 
 
 
 
 
 instrument 
 
 Five Shillings. 
 
 
 3 P
 
 946 
 
 HALF-YEAELY AGEEEMENT, &C., WITH 
 
 ^*# Any Erasure, Interlineation, or Alteration in this Agreement will he void, unless attested hy 
 
 made with the consent 
 
 Eng. 6. late B. and D. Sanctioned by the Board of Trade, May, 1874, 
 
 This Agreement to he used only for voyacfes made on the coasts of the United Kingdom, or to 
 
 Isle of Man, or to places on the Continent of Europe between 
 
 HALF-YEARLY AGREEMENT AND 
 
 OF A SHIP ENGAGED IX 
 
 l^p" Notice. — As this Agreement is made for voyages in the home trade only, the crew 
 Agreement is made it expires on the next following 30th day of June or 31st day of December 
 superintendent of a mercantile marine office. If, however, the ship is absent from the 
 remains in force until the first arrival of the ship at her final port of destination in the United 
 be delivered up to a superintendent. 
 
 On this agreement and account of crew being duly completed and deposited at a mercantile 
 cleared at the Custom House. 
 
 Neglect to deposit the returns tvithin the time prescribed by the Merchant Shipping Act 
 certificate and consequent detention of the ship. 
 
 N.B. — The master^s attention is specially directed to the "Instructions to Masters of Home 
 
 Name of Ship. 
 
 Official iso. 
 
 Port of 
 PiCgistry. 
 
 Port No. and 
 Date of Register. 
 
 Resristered 
 Tonnage. 
 
 Nominal Horse- 
 power of 
 Engines (if any). 
 
 No. of Seamen for 
 whom accommoda- 
 tion is certified, 
 30 & 31 Vict. c. 124. 
 
 
 
 
 
 
 \ 
 
 
 Scale of Provisions to be allowed and served out to the crew during the voyage. 
 
 
 Bread 
 lb. 
 
 Beef 
 lb. 
 
 Pork 
 lb. 
 
 Flour 
 lb. 
 
 Peas 
 pinr. 
 
 Rice 
 lb. 
 
 Tea 
 oz. 
 
 Coffee 
 oz. 
 
 Sugar 
 oz. 
 
 Water 
 
 qts. 
 
 
 Sunday 
 Monday 
 Tuesday 
 Wednes"day .. 
 Thursday . . 
 Friday 
 Saturday . . 
 
 
 
 
 
 
 
 
 
 
 
 
 * 
 
 SUBSTITUTES 
 
 * H 
 
 n-e any stipulation for changes or substitution of one article for another may be inserted. 
 
 (a) Here the probable nature of the ship's emplovment for the ensuuig six months is to be described thus, "In 
 this agreement are to be insened in the Form provided on page 952. 
 
 (ft) Here are to be inserted the numbers of anv of the regulations for maintaining discipline issued by the Board 
 (c) Here any stipulations may be inserted to which the parties agree, and which are not contrary to law.
 
 CBEW FOR HOME TEADE SHIPS. 
 
 947 
 
 some Superintendent of a Mercantile Marine Office, Officer of Customs, Consul, or Vice-Consul, to la 
 of the persons interested, 
 
 in inirsuance of 17 & 18 Vict, c, 104. 
 
 the Islands of Jersey, Guernsey, Alderuey, Sark, and 
 the Eiver Elbe and Brest, inclusive. 
 
 ACCOUNT OF VOYAGES AND CREW 
 
 THE HOME TRADE ONLY. 
 
 EsECUTED IN Ten Pages. 
 
 need not be engaged before a superintendent of mercantile marine. On whatever date the 
 next, as the case may be, and is then, or within 21 days afterwards, to be delivered to the 
 United Kingdom on the 30th day of June or 31st day of December, then this agreement 
 Kingdom after such date, or the discharge of cargo consequent on such arrival, when it is to 
 
 marine office, the superiiatendent will issue the Certificate C.C., to enable the ship to be 
 
 subjects the owner or master to a penalty, and will lead to delay in the issue of the clearance 
 
 Trade Vessels," contained tin p. 952. 
 
 registered (MANAGING) OWNER. 
 
 MASTER. 
 
 Distance in feet and inches between 
 centre of Maximum load line disc and 
 
 Name. 
 
 Address. (State No. of 
 House, Street, aud Town.) 
 
 Name. 
 
 
 Address. (State 
 
 No. of House, 
 
 Street, and 
 
 Town.) 
 
 upper edge of line indicating the 
 position of the 
 
 1st Deck above it. 
 
 2nd Deck above it. 
 
 
 
 
 
 
 ft. iu. 
 
 ft. in 
 
 The several jjersons whose names are hereto subscribed, and whose descriptions are 
 contained on the other side or sides, and of whom are engaged as sailors, hereby agree 
 
 to serve, in the several capacities expressed against their respective names, on board the said 
 ship, which is to be employed (a) 
 
 And the crew agree to conduct themselves in an orderly, faithful, honest, and sober 
 manner, and to be at all times diligent in their respective duties, and to be obedient to the 
 lawful commands of the said master or of any person who shall lawfully succeed him, and of 
 their superior officers, in everything relating to the said shi]5 and the stores aud cargo thereof, 
 whether on board, in boats, or on shore ; in consideration of which services to be duly performed, 
 the said master hereby agrees to pay to the said crew as wages the sums against their names 
 respectively expressed, and to supply them with provisions according to the above scale : And 
 it is hereby agreed, that any embezzlement or wilful or negligent destruction of any part of the 
 ship's cargo or stores shall be made good to the owner out of the wages of the person guilty of 
 the same : And if any person enters himself as qualified for a duty which he j)roves incompetent 
 to perform, his wages shall be reduced in jiroportion to his incompetency ; and it is also agreed 
 that the regulations for maintaining discipline sanctioned by the Board of Trade, which are 
 printed herein and numbered {h) are adopted by the parties hereto, and 
 
 shall be considered to be embodied in this agreement. 
 
 And it is also agreed, that if any member of the crew considers himself to be aggrieved by 
 any breach of the agreement or otherwise, he shall represent the same to the master or officer iu 
 charge of the ship in a quiet and orderly manner, who shall thereupon take such steps as the 
 case may require : And it is also agreed, that (c) 
 
 the coasting trade of the United Kingdom;" "In the home trade." The particulars of each voyage made under 
 of Trade, aud printed on page 952 hereof, which the pai-tiea agree to adopt. 
 
 3 p 2
 
 948 
 
 HALF-YEAELY AGREEMENT, &C., WITH 
 
 Date and Place of first Signature of Agreement. 
 
 Date. 
 
 Place. 
 
 
 
 These Columns to be filled in by tlie Master at the end of the last Voyage or the half year. 
 
 Date of Termination of 
 the last Voyage. 
 
 Port at which 
 the last Voyage terminated. 
 
 I hereby declare to the truth of the entries in 
 this agreement and account of crew, &c. 
 
 Master. 
 
 N.B. 
 
 -This form must not be unstitched. No leaves may be taken out of it, and none may be added or substituted, 
 during the half year, terminating on the 30th day of June or 31st day of December next, than the number 
 
 Xame of 
 
 PARTICT7LAES OP ENGAGEMENT. 
 
 SIGNATURES OP CREW. 
 
 Town or 
 County where bora. 
 
 Master to sign first. 
 
 to o 
 P3.2 
 
 o 
 
 Ship in which he 
 
 last served. 
 
 5 = S 
 :'3 
 
 e 
 o 
 
 Year. 
 
 Date and Place 
 
 of signing 
 this Agreement. 
 
 Date. 
 
 Place. 
 
 (a) Should the rate of wages in any case be altered during the continuance of this agi-eement, a fresh entrv should 
 
 (b) If any member of the crew enters Her Majesty's service, the name of the Queen's ship into which he enters is 
 leavmgthe ship should be briefly stated thus, "Discharged," "Deserted," "Left Sick," "Died." 
 
 (0) \ .G. for " Very Good," G. " Good," or " Declines to report." 
 
 I
 
 CEEW FOE HOME TRADE SB.IVS ^Continued. 
 
 949 
 
 In Witness whereof the said parties have subscribed their names on the other side or 
 sides hereof on the days against their respective signatures mentioned. 
 
 .Master's Bujnatiirc. 
 
 To be filled iu by the Superintendent. 
 
 Received at 
 187 
 
 tlie 
 
 (lay 
 
 of 
 
 ( Hupermtendent of 
 \ Mercantile Marine. 
 
 Care should be taken at the time of engagement that a sufficiently large foiTU is used. If more men are engaged 
 for whom signatures are provided in this form, an additional form Eng. ti should be obtained and used. 
 
 Sliip_ 
 
 Agreement No. 
 
 
 PARTICULARS OF DISCHARGE, &c.. 
 
 To he filled in by the Master 
 
 upon the Discharge, Death, or Desertion 
 
 of any Member of his Creiv. 
 
 o 
 'A 
 o 
 
 1 
 
 1^ 
 
 
 "2 .'>' 
 
 s S g 
 
 ill 
 
 3 § o 
 
 5 "^ 
 9 
 
 o 
 o 
 
 o . 
 
 an 
 
 ft 
 13 ■^ 
 
 to 
 o 
 
 g 
 
 10 
 
 '6 Q 
 
 =S B S, 
 >> o« 
 
 01 ;* s 
 
 pi 
 
 Hi 
 
 a £ 
 11 
 
 1 
 
 a 
 
 « 
 
 ^i 
 
 § 
 PI 
 < 
 
 12 
 
 Signatnrc of Superintendent of 
 y^ Mercantile Marine, 
 '^ H.M. Consul, or other Witness to 
 the Engagement. 
 
 Date and Place of 
 Commencement of 
 Service on board. 
 
 Date, Place, and Cause 
 
 of leaving this Ship, 
 
 or of Death. 
 
 Report of 
 Charterer (c). 
 
 
 Date. 
 14 
 
 Place. 
 
 15 
 
 Date. 
 16 
 
 Place. 
 
 17 
 
 Cause 
 (b). 
 
 18 
 
 s 
 
 a 
 o 
 
 i 
 
 o 
 19 
 
 d . 
 •pa 
 
 20 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 2 
 
 
 Master. 
 
 
 
 
 
 
 
 
 
 
 
 
 be made, which the seaman should sign. - 
 
 to be stated under the head of '• Cause of leavimj the Ship;' thus, "H.M.S. Revenge;" and the other causefl of
 
 I 
 
 950 
 
 HALF-YEARLY AGEEEME]ST, &C., WITH 
 
 Xamc of 
 
 ACCOUNT OF APPRENTICES ON BOARD (IF ANY). 
 
 Cbristian and Surnames of the 
 Apprentices at full length. 
 
 I 
 
 Date of 
 Birth. 
 
 2 
 
 r.egistiy 
 of Indenture. 
 
 Registry 
 of Assignment. 
 
 Date, Place, and Cause of leaving 
 
 this Ship, or of Death. 
 
 To be filled up by the Master. 
 
 Date of 
 3 
 
 Tort of 
 4 
 
 Date of 
 5 
 
 Port of 
 6 
 
 Date. 
 7 
 
 Place. 
 
 S 
 
 Cause.^ 
 9 
 
 
 
 
 
 
 
 
 
 
 BIRTHS 
 
 THAT HAVE OCCURRED ON BOARD DURING THE HALF TEAR. 
 
 Date of Birth. 
 
 1 
 
 Name of Child 
 (if any). 
 
 2 
 
 Sex. 
 
 Christian and Surname 
 of Father. 
 
 Kame and Maiden Surname 
 of Mother. 
 
 5 
 
 Profession 
 
 or Occupation 
 
 of Father. 
 
 6 
 
 
 
 
 
 
 
 DEATHS 
 
 THAT HAVE OCCURRED ON BOARD DURING THE HALF TEAR. 
 
 OF CREW (0). 
 
 OF PASSENGERS OR OTHER THAN THE CREW. 
 
 p 
 
 < 
 
 a 
 
 1 
 
 Name of Deceased. 
 
 t» C A t- '-^ 
 
 iili 
 
 "5 
 P 
 o 
 
 4 
 
 Christian and 
 
 Surname 
 of Deceased. 
 
 5 
 
 o 
 6 
 
 < 
 7 
 
 8 
 
 1. 
 
 
 s 
 
 c 
 
 o 
 10 
 
 - 
 
 
 
 
 
 
 
 
 
 
 
 
 (a) Particulars of the moneys due to each deceased seaman, and of his clothes and effects, and of deductions (if anv). 
 t^'^M^nf "'t'^''''''"-^ "■■: '■*^V'!'° ^^ "* .^'^eparate Form W. & E. 1 (late KK.), which will be furnished by the superin- 
 lvTpofl[;„;LMLT''* y ■'""^ I? ^'''^ =' ^^'^ account of these p.nrticulars, he will be liable to forfeit a sum not 
 exceeclmg treble the value of the money and effects not accounted Jor, or to a penalty not exceeding JE50.
 
 Ship. 
 
 CREW POK HOME TEADE SHIPS — Continued. 
 
 Agreement No. 
 
 CERTIFICATES 
 
 OR INDORSEMENTS MADE BY H.M. CONSULS OR BY SUPERINTENDENTS OF 
 MERCANTILE MARINE OFFICES. 
 
 951 
 
 REGULATIONS FOR MAINTAINING DISCIPLINE, SANCTIONED BY 
 THE BOARD OF TRADE IN PURSUANCE OF THE MERCHANT 
 SHIPPING ACT, s. 149. 
 
 These Regulations are distinct from and in addition to those contained in the 
 Act, and are sanctioned but not universally required by law. All or any of 
 them may be adopted by agreement between a master and his crew, and thereupon 
 the offences specified in such of them as are so adopted will be legally punishable 
 by the appropriate fines or punishments. 
 
 These regulations are all numbered, and the numbers of such of them as are 
 adopted must be inserted in the space left for that purpose in the agreement, 
 page 1, and the following copy of these regulations must be made to correspond 
 ■with the agreement by erasing such of the regulations as are not adopted. If the 
 agreement is made before the superintendent of a mercantile marine office, his 
 signature or initials must be placed opposite such of the regulations as are 
 adopted. 
 
 For the purpose of legally enforcing any of the following penalties, the same 
 steps must be adopted as in the case of other offences punishable under the Act ; 
 that is to say, a statement of the offence must, immediately after its commission, be 
 entered in the official log book by the direction of the master, and must at the 
 same time be attested to be true V)y the signatures of the master and the mate, or 
 one of the crew ; and a copy of such entry must be fitrnished, or the same must 
 be read over, to the offender, before the ship reaches any port or departs from the 
 port at which she is ; and an entry that the same has been so furnished or read 
 over, and of the reply, if any, of the offender, must be made and signed in the same 
 manner as the entry of the offence. These entries must, upon discharge of the 
 offender, be shown to the superintendent of a mercantile marine office before 
 whom the offender is discharged ; and if he is satisfied that the offence is proved, 
 and that the entries have been properly made, the fine must be deducted from the 
 offender's wages, and paid over to the superintendent. 
 
 If, in consequence of subsequent good conduct, the master thinks fit to remit 
 or reduce any fine upon any member of his crew which has l:>een entered in the 
 official log, and signifies the same to the superintendent, the. fine shall be remitted 
 or reduced accordingly. If wages are contracted for by the voyage or by share, 
 the amount of the fines is to be ascertained in the manner iu which the amount of 
 forfeiture is ascertained in similar cases under sect. 252.
 
 952 
 
 HALF-YEAKLY AGEEEMENT, &C.j "WITH 
 
 No. 
 
 OFFENCE. 
 
 Amount of Pine 
 or Punishment. 
 
 Signatiu'e 
 of Superin- 
 tendent. 
 
 1 
 2 
 
 ■1 
 
 4 
 
 Striking or assaulting any person on 
 hoard or belonging to the shiiD (if not 
 otherwise prosecuted) 
 
 Bringing or having on hoard spirituous 
 liquors... 
 
 Drunkenness. First Offence 
 
 Do. Second and for each 
 subsequent Offence 
 
 Taking on board and keeping possession 
 of any fire-arms, knuckle-duster, 
 loaded cane, slung-shot, s-\vord-stick, 
 howie knife, dagger, or any other 
 offensive weapon, or offensive instru- 
 ment, without the concurrence of the 
 Master, for every day during which a 
 seaman retains such weapon or in- 
 strument 
 
 Five ShiUings. 
 
 Five Shillings. 
 Five Shillings. 
 
 Ten Shillings. 
 Five Shillings. 
 
 
 PARTICULARS OF VOYAGES. 
 
 A statement of the dates of Departure and dates of AiTival at the several 
 ports must be entered under this heading. 
 
 From 
 
 To 
 
 From 
 
 To 
 
 Date of 
 Departure. 
 
 Port. 
 
 D.ite of 
 Ai-rival. 
 
 Port. 
 
 Date of 
 Departure. 
 
 Port. 
 
 Date of 
 Arrival. 
 
 Port. 
 
 
 
 
 
 
 
 
 
 INSTRUCTIONS TO MASTERS OF VESSELS ENGAGED IN THE 
 
 HOME TRADE. 
 
 S. 157. 
 S. 156. 
 
 b. 166. 
 S. 163. 
 
 Home-Trade Agreements. 
 
 1. The Merchant Shipping Act requires the master of every ship, except ships 
 of less than eighty tons exclusively employed in trading upon, coasts of United 
 Kingdom, to enter into an agi-eement with every seaman whoui he carries to sea 
 as one of his crew. (The term "Seaman" includes every person, except masters, 
 pilots, and apprentices (duly indentured and registered) employed or engaged in 
 any capacity on board any ship.) 
 
 2. Neglect to comply with this regulation subjects the master or owner to a 
 penalty not exceeding 51. for every offence. 
 
 3. In order to enable the seamen to know the contents of the agreement, the 
 master must cause the agreement to be read over and explained to each seaman, 
 and the seaman wiU thereupon sign the same hi the presence of a witness, who 
 shall attest his signature. 
 
 4. The master is bound, under a penalty of 51, to have a legible copy of the 
 agreement (omitting the signatures) placed'^in an accessible part of the ship. 
 
 5._ All alterations in any agreement (except additions in shipping substitutes) 
 are inoperative unless proved to have been made with the consent of all persons 
 interested, by the written attestation of a superintendent of a mercantile marine
 
 CREW FOR HOME TEADE SHIPS — Continued. 953 
 
 office, justice, officer of customs, consul, or vice-consul, or where there is no sucli 
 officer, of two respectable British merchants. 
 
 6. Fraudulently altering, or maldng any false entry in, or delivering a false copy | ^^4 and 
 of any agreement, or being party to such an act, may be punished by the infliction 
 
 of a penalty not exceeding 100^., or by imprisonment with or without hard labour 
 for any period not exceeding six months. 
 
 Ports abroad. 
 
 7. Upon the arrival of the ship at any foreign port where there is a British con- g^ 279. 
 Bular officer, the master is bound under a penalty of ^20 to deliver within 
 forty-eight hours of the ship's arrival (if the ship remains forty-eight hours 
 
 at the port, and is not a passenger ship), to the consular officer, the agreement) 
 and all indentures and assignments of apprenticeships. These the consul will keep 
 during the ship's stay at the port, and will, within a reasonable time before the 
 ship's departure, return to the master, with a certificate stating when they were 
 delivered and returned. 
 
 8. The engagement or discharge of any seaman abroad must be made before the ss. i«o, 205, 
 British consul, who will endorse upon the agreement a certificate accordingly. If aid 207. 
 this certificate be not made the master of the ship is liable to a penalty. (See also 
 
 pars. 14 and 15 below.) 
 
 Official Log Books. 
 
 9. Every ship, of whatever tonnage, which trades to any port out of the United SS. 280j_286, 
 Kingdom, must carry an official log book, which must be delivered at the termina- ^°" ^^''' 
 tion of the half-year or home-trade employment, with the agreement and account 
 
 of crew, to the superintendent of a mercantile marine office. ' 
 
 10. The master's attention is specially directed to the instructions contained ill 
 the 2nd and 3rd pages of the official log book as to the entries which are required 
 by law to be made therein. 
 
 11. On every occasion of the vessel proceeding to sea, the master is required, c. r j r 
 under a penalty of £20, to enter in the official log book the ship's draught of water. Act of 1871. 
 
 Termination of Voyage or Half Year. 
 
 12. This agreement may not extend beyond the date of the first arrival of the g. i62ipav. i. ' 
 ship at her final port of destination in the United Kingdom after the 30th June or 
 
 31st December next following. 
 
 13. Within twenty-one days after the 30th June or the 31st December, or pre- S- 1^1^^^^'; 2' 
 viously if by change of employment the vessel leaves the home for the foreign .^^^ 1%, 
 trade, the master or owner is to deliver to the superintendent of mercantile marine ' 
 
 a return in this form, together with accounts of the wages and efl'ects of any 
 seaman or apprentice, whether he formed part of the crew or not, who has died on 
 board during the period of the home-trade agreement, and any efl'ects remaining 
 unsold and the balance of wages or other moneys belonging to any such seaman 
 or apprentice. The master is also to deliver to the superintendent the certificates 
 (mates, engineers, or seaman's, E. V. 2) of any who have died or deserted during 
 the voyage. The superintendent will then give a certificate for the purpose of 
 clearance. 
 
 14. The master is to give to every seaman (or leave with the superintendent on S. 171. 
 liis behalf) an account, on a form sanctioned l)y the Board of Trade, of his wages, 
 
 and of all deductions to be made therefrom, at least twenty-four hours before the 
 time of payment or discharge, under a penalty of 5?. for non-compliance. Deduc- 
 tions for fines, forfeitures, &c., which are sought to be made in this account must 
 be proved by proper entries made in the official log book. 
 
 15. Upon paying ofl' or discharging any seaman, the master is bound under a ss. 172, and 
 penalty of 10/, to give the seaman a certificate of discharge, and the master is also 516 of k.B. 
 bound under a penalty of 20/. to return to any certificated mate or engineer upon ^^t, 1862. 
 his discharge his certificate of competency or service. 
 
 16. A statement of the conduct, character, and qualification of each member of S. 176, 
 the crew, or a statement that he declines to give all opinion on such particulars, is 
 
 to be entered in this list and signed by the master.
 
 %4< 
 
 COPY OF AGREEMENT TO BE 
 
 (U 1.) COPY OF AGREEMENT TO BE MADE ACCESSIBLE TO THE CREW (IN 
 
 STATUTORY PROVISIONS 
 
 Sanctioned by the Board of Trade Januanj, 
 
 Name of SMp. 
 
 Official 
 Ximiber. 
 
 Port of 
 Registry. 
 
 Port No. and Date 
 of Registei'. 
 
 Registered 
 Tonnage. 
 
 Xo. of Seamen for -n-hom accom- 
 modation is certified. - 
 (30 & 31 Vict. c. 124.) 
 
 
 
 
 
 
 
 Scale of ProTisious to be allowed and sei-ved out to the Crew during the Yoyagc. 
 
 Simday 
 
 Monday 
 
 Tuesday 
 
 Wednesday 
 
 Thursday 
 
 Friday 
 
 Satm'day 
 
 Bread 
 lb. 
 
 Beef 
 lb. 
 
 Pork 
 lb. 
 
 Flour 
 lb. 
 
 Peas 
 Pint, 
 
 Tea 
 
 oz. 
 
 Coffee 
 oz. 
 
 Sugar 
 oz. 
 
 Water 
 
 qts. 
 
 • Here any stipulations for Changes or substitution of one ai-ticle for another entered in the Agreement 
 
 is to be inseited. 
 
 ifOTE.— The blanks are to be filled up so as to Con'espond with the Agreement as it is signed by the Crew.
 
 ACCESSIBLE TO THE CEEW. 
 
 955 
 
 PUESUANCE OF 17 & 18 VICT. c. 104, s. 166), WITH AN ABSTRACT OF CERTAIN 
 AND A LIST OF FINES. 
 
 1876, in 2nirsuance of 17 <£• 18 Vict. c. 104. 
 
 Distance in feet and inches between centre of 
 
 maximum load line, disc, and upper edge 
 
 of line indicating the position of the ' 
 
 Xame of Master. 
 
 No. of his 
 Certificate. 
 
 Date and Place of first Signature 
 
 of Agreement, including 
 
 Name of Shipping 
 
 Office. 
 
 First deck above it. 
 
 Second deck above it. 
 
 ft. in. 
 
 ft. iu. 
 
 
 
 ■ 
 
 The several persons whose names are hereto subscribed, and whose descriptions are con- 
 tained below, and of whom are engaged as sailors, hereby agree to serve on 
 board the said ship in the several capacities expressed against their respective names, on a 
 voyage from 
 
 And the said crew agree to conduct themselves in an orderly, faithful, honest, and sober 
 manner, and to be at all times diligent in their respective duties, and to be obedient to the 
 lawful commands of the said master, or of any person who shall lawfully succeed him, and of 
 their superior officers, in everything relating to the said shij), and the stores and cargo thereof, 
 whether on board, in boats, or on shore : In consideration of which services to be duly per- 
 formed, the said master hereby agrees to pay to the said crew as wages the sums against their 
 names respectively expressed, and to supply them with provisions according to the annexed 
 scale : And it is hereby agreed, that any embezzlement, or wilful or negligent destruction of any 
 part of the ship's cargo or stores, shall be made good to the owner out of the wages of the 
 person guilty of the same : And if any person enters himself as qualified for a duty which he 
 proves incompetent to perform, his wages shall be reduced in proportion to his incompetency : 
 And it is also agreed, that the regulations authorized by the Board of Trade, which in the paper 
 annexed hereto are numbered 
 
 are to be adopted by the 
 parties hereto, and shall be considered as embodied in this agreement : and it is also agreed, 
 that if any member of the crew considers himself to be aggrieved by any breach of the agree- 
 ment, or otherwise, he shall represent the same to the master or officer in charge of the shijj in a 
 quiet and orderly manner, who shall thereupon take such steps as the case may require : and it 
 is also agreed, that
 
 956 COPY OP AGREEMENT TO BE 
 
 ABSTRACT OF CERTAIN CLAUSES IN « THE M. S. ACTS, 
 1854 A>-D 1867." 
 
 17 & 18 Vict. c. 104, and 30 & 31 Vict. c. 124. 
 
 J. For Maintaining Discipline. 
 
 Section 239. Any master of, or any seaman or apprentice iDelonging to, any 
 British ship wlio by -wilful breach of duty or by neglect of duty, or by reason of 
 drunkenness, does any act tending to the immediate loss, destruction, or serious 
 damage of such ship, or tendiiig immediately to endanger the life or limb of any 
 person belonging to or on board of such ship, or who by Avilful breach oi duty or 
 by neglect of duty, or by reason of drunkenness, refuses or omits to do any lawful 
 act proper and requisite to be done by him for preserving such ship from imme- 
 diate loss, destruction, or serious damage, or for preserving any person belonging 
 to or on board of such ship from immediate danger to life or limb, shall for every 
 such offence be deemed guilty of a misdemeanor. 
 
 Section 243. Whenever any seaman who has been lawfully engaged or any 
 apprentice to the sea service commits any of the following offences he shall be 
 liable to be punished by summary proceeding before two justices as follows; (that 
 is to say,) 
 
 1. For desertion he shall be liable to imprisonment for any period not exceed-' 
 
 ing 12 weeks, wdth or without hard labour, and also to forfeit all or any 
 part of the clothes and effects he leaves on board, and all or any part of the 
 w'ages or emoluments which he has then earned, and also if such desertion 
 takes place abroad, at the discretion of the court, to forfeit all or any part 
 of the wages or emoluments he may earn in any otlier ship in which he 
 may be employed imtil his next retiu-n to the U. K., and to satisfy any 
 excess of wages paid by the master or owner of the ship from which he 
 deserts to any substitute engaged in his place at a higher rate of wages than 
 the rate stipulated to be paid to him : 
 
 2. For neglecting or refusing, without reasonable cause, to join his ship, or to 
 
 proceed to sea in his ship, or for absence without leave at any time within 
 24 hoiu's of the ship's sailing from any port either at the commencement or 
 during the progress of any voyage, or for absence at any time witliout leave 
 and without sufficient reason from his ship or from his duty not amounting 
 to desertion or not treated as such by the master, he shall be liable to im- 
 prisonment for any period not exceeding ten weeks, with or without hard 
 labour, and also, at the discretion of the court, to forfeit out of his wages a 
 sum not exceeding the amount of two days' pay, and in addition for every 
 24 hoiu's of absence either a sum not exceeding six days' pay, or any 
 expenses which have been properly inciu'red in hiring a substitute : 
 
 3. For quitting the ship without leave after her arrival at her port of delivery 
 
 and before she is placed in seciu-ity, he shall be liable to forfeit out of his 
 wages a sum not exceeding one month's pay : 
 
 4. For wilful disobedience to any lawful command he shall be liable to im- 
 
 prisonment for any period not exceeding 4 weeks, with or without hard 
 labour, and also, at the discretion of the coiu't, to forfeit out of his wages a 
 sum not exceeding two days' pay : 
 
 5. For continued wilful disobedience to lawful commands, or continued wilful 
 
 neglect of duty, he shall be liable to imprisonment for any period not 
 exceeding 12 weeks, with or without hard labour, and also^ at the dis- 
 cretion of the court, to forfeit for every 24 hours continuance of such dis- 
 obedience or neglect either a sum not exceeding six days' pay, or any 
 expenses wliich have been properly incurred in hiring a substitute : 
 
 6. For assaulting any master or mate he shall be liable to imprisonment for any 
 
 period not exceeding 12 Aveeki?, ■with or without hard laboiu- :
 
 ACCESSIBLE TO THE CEEW — Continued. 957 
 
 7. For combining witli any other or others of the crew to disobey Lawful com- 
 
 mands, or to neglect duty, or to impede the navigation of the sliip or the 
 progress of the voyage, he shall be liable to imprisonment for any period 
 not exceeding 12 weeks with or without hard labour: 
 
 8. For wilfully damaging the ship, or embezzling or wilfully damaging any of 
 
 her stores or cargo, he shall be liable to forfeit out of his wages a sum equal 
 in amount to the loss thereby sustained, and also, at the discretion of the 
 court, to imprisonment for any period not exceedmg 12 weeks, with or 
 without hard labour : 
 
 9. For any act of smuggling of which he is convicted, and whereby loss or 
 
 damage is occasioned to the master or owner, he shall be liable to pay to 
 
 such master or owner such a sum as is sufficient to reimburse the master or 
 
 owner for such loss or damage ; and the whole or a proportionate part of 
 
 his wages may be retained in satisfaction or on account of such liability, 
 
 without prejudice to any further remedy. 
 
 No seaman or apprentice is entitled to wages for any period during which he 
 
 unlawfully refuses or neglects to work when required, whether before or after the 
 
 time fixed by the agreement for his beginning work, nor unless the court hearing 
 
 the case otherwise directs, for any period during which he is lawfully imprisoned 
 
 for any offence committed by him. (s. 186.) 
 
 Whenever any seaman or apprentice has in the course of a voyage been con- 
 victed of any offence and rightfully punished therefor by imprisonment or other- 
 wise, the court hearing the case may direct a part of tlie wages due to him, not 
 exceeding £3, to be applied in reimbursing any costs properly incurred 
 by the master in procuring such conviction and punishment, (s. 251.) 
 
 If any seaman on or before being engaged wilfully and fraudulently makes a 
 false statement of the name of his last ship or last alleged ship, or of his own 
 name, he will incur a penalty not exceeding £5 ; and such penalty may he 
 deducted from any wages he may earn by virtue of such engagement as aforesaid. 
 (s. 255.) 
 
 JI. Power of Making Complaint, and Power of Summoning Naval Coxirts. 
 
 If any seaman or apprentice whilst on board any ship states to the master that 
 he desires to make complaint to a justice of the peace, or consular officer, or naval 
 officer in command of any of H. M.'s ships, against the master or any of the crew, 
 the master must, if the ship is then at a place where there is a justice or any such 
 officer as aforesaid, so soon as the service of the ship will permit, and if the ship 
 is not then at such a place, so soon after her first arrival at such a place as the 
 service of the ship -will permit, allow such seaman or apprentice to go ashore or 
 send him ashore in proper custody so that he may be enabled to make such 
 complaint, and will, in default incur a penalty not exceeding ^10. (s. 232.) 
 
 Any officer in command of any ship of H. M. on any foreign station, or, in his 
 absence, any consular officer, may summon a "naval court :" — 
 
 Whenever a complaint which appears to such officer to require immediate 
 
 investigation is made to him by the master of any British ship, or by any 
 
 certificated mate, or by one or more of the seamen belonging to any such 
 
 ship: 
 
 Whenever the interest of the owner of any British ship or of her cargo appears 
 
 to such officer to require it : 
 Wherever any British ship is wrecked, abandoned, or otherwise lost at or near 
 the place where such officer may be, or whenever the crew or part of the crew 
 of any British ship which has been wrecked, abandoned or lost abroad, arrives 
 at such place, (s. 260.) 
 Any person who wilfully and without due cause prevents or obstructs the 
 making of any such complaint will incur a penalty not exceeding £50, or be liable 
 to imprisonment, with or without hard labour, for any period not exceeding 12 
 weeks, (s. 266.)
 
 958 COPY or ageeement to ee 
 
 in. Provisions, Health, and Accommodation, 
 
 Any three or more of the crew of any British ship may complain to any officer in 
 command of any of H. M.'s ships, any British consular officer, shipping master (ft), 
 or chief officer of customs, that the provisions or water for the use of the crew are 
 at any time of bad quality, unfit for use, or deficient in quantity ; and such officer 
 may thereupon examine the said provisions or water, or cause them to be examined ; 
 and if on examination they are found to be as complained of, he shall signify the 
 same in vrriting to the master of the ship, who must thereupon remedy the defect, 
 and in case of default will incur a penalty not exceeding £20. (sec. 221.) 
 
 But should tlie comi^laint on examination prove to be unfounded, each of the 
 parties so complaining will be liable to forfeit to the owner out of his wages a suni 
 not exceeding one week's wages, (s. 222.) 
 
 If during a voyage the allowance of any of the provisions which any seaman has 
 by his agreement stipulated for is reduced (except in accordance with any regula- 
 tions for reduction by way of punishment contained in the agreement, and also 
 except for any time during which such seaman wilfully and without sufficient cause 
 refuses or neglects to perform his duty, or is lawfully imder confinement for mis- 
 conduct, either on board or on shore), by any quantity not exceeding one-third 
 of the quantity specified in the agreement, the seaman is to receive by way of 
 compensation for such reduction, according to the time of its continuance, a sum 
 not exceeding fourpence a day : if his allowance is reduced by more than one-third 
 of such cpiantity, eightpence a day ; if it is shown that any of such provisions are 
 or have during the voyage been bad in cpiality and unfit for iise, a sum not 
 exceeding one shilling a day. Such simi to be in each case paid to him in addition 
 to and recoverable as wages ; but if it is shown to the satisfaction of the court 
 before wliich the case is tried that any provisions the allowance of which has been 
 reduced could not be proci;red or supplied in proper c|uantities, and that proper and 
 equivalent substitutes were supplied in lieu thereof, the court will take such cir- 
 cumstances into consideration, and modify or refuse compensation as the justice of 
 the case may require, (s. 223.) 
 
 Every ship navigating between the U. K. and any place out of the same must 
 have constantly on board a supply of such medicines and medical stores suitable 
 to accidents and diseases arising on sea voyages as are enumerated in the scale 
 issued by the Board of Trade, and in default the master or owner ■noil inciu' a 
 penalty not exceeding £20. (s. 4, of 1867 Act.) 
 
 The master or owner of every foreign-going ship (except those bound to European 
 ports or to ports in the Mediterranean Sea, and also except such shijjs or classes 
 of ships bound to ports on the eastern coast of America north of the 35th degree of 
 north latitude, and to any islands or jjlaces in the Atlantic Ocean north of the same 
 limit, as the Board of Trade may from time to time exempt,) is bound under a 
 like penalty also to pro\'ide and cause to be kept on board such ship, a sufiicient 
 c[uantity of lime or lemon juice, or of such articles as the Board of Trade sanctions 
 as substitutes for lime or lemon juice, (s. 4 of 1867 Act.) 
 
 The master of every such ship as last aforesaid must serve out the lime or lemon 
 juice or other such articles as aforesaid with sugar to the crew, whenever they have 
 been at sea for ten days, and dimng the remainder of the voyage, except' when 
 they are in harbour and are then supplied with fresh provisions,' the lime or lemon 
 juice and sugar daily at tlie rate oi an oimce each per day, mixed mth a due pro- 
 portion of water, to each member of the crew, and in default will incur a penalty 
 for each oflence not exceeding £b. (s. 4 of 1867 Act.) 
 
 Every master must keep on board proper weights and measures, and allow them 
 to be used in the presence of a witness at the time of serving out the pro^ision3 
 and articles, whenever any dispute arises about the quantities, under a penalty for 
 neglect, not exceeding £10. (s. 225.) 
 
 Eveiy place in any ship occupied by seamen or apprentices, and appropriated to 
 
 («) Now superintendent of a mercantile marine office ; see 25 & 26 Yic. c. 63, s. 16 ; ante, p. 848.
 
 ACCESSIBLE TO THE CEEW — Continued. 959 
 
 their use, must have for every such seaman or apprentice a space of not less than 72 
 cubic feet, and of not less than 12 superficial feet, measured on the deck or 
 floor of such place ; and every such place must be properly caulked, and in all 
 respects securely and properly constructed and well ventilated ; and in case of 
 default the owner renders himself liable to a penalty, (s. 9 of 1867 Act.) 
 
 And if any such space is not kept free from goods and stores of any kind, not 
 being the personal property of the crew in use during the voyage, the master shall 
 be deemed to be in fault, and shall for each default pay to each seaman lodged in 
 such place the sum of one shilling a day for each day, after complaint made to 
 him by two or more of such seamen, during which such stores are kept therein. 
 
 If the master or any seaman or apprentice receives any hurt or injury in the 
 service of the ship to which he belongs, the expense of providing the necessary 
 surgical and medical advice, with attendance and medicines, and of his subsi.stence 
 until he is cured, or dies, or is brought back to some port in the U. K., if shipped 
 in the U. K., or if shipped in some British posses.sion to some port in such 
 possession, and of his conveyance to such jwrt, and the expense (if any) of his 
 burial, must be defrayed by the owner of such ship, without any deduction on that 
 account from the wages of sucli master, seaman, or apprentice : If the master or 
 any seaman or apprentice is on account of any illness temporarily removed from 
 his ship for the purpose of preventing infection, or otherwise for the convenience 
 of the ship, and subsequently returns to his duty, the expense of such removal 
 and of providing the necessary acMce wdth attendance and medicines, and of his 
 subsistence whilst away from the ship, must be defrayed in like manner : the 
 expense of all medicines and surgical or medical advice and attendance given to 
 any master, seaman, or apprentice whilst on board his ship, must be defrayed in 
 like manner : In all other cases any reasonable expenses duly incurred by the 
 owner for any seaman in respect of illness, and also any reasonable expenses duly 
 incurred by the owner in respect of the burial of any seaman or apprentice who 
 dies whilst on service, shall, if duly proved, be deducted from the w^ages of such 
 seaman or apprentice, (s. 228.) 
 
 Whenever it is shown that any seaman or apprentice wdio is ill has, through 
 the neglect of the ma.ster or owner, not been provided with proper food and water 
 according to his agreement, or with such accommodation, medicines, medical 
 stores, or anti-scorbutics as are required by the principal Act or by this Act, then, 
 unless it can be shown that the illness has been produced by other causes, the 
 owner or master shall be lialjle to pay all expenses properly and necessarily 
 incurred by reason of such illness (not exceeding in the whole three months wage.s), 
 either by such seaman himself, or by H. M.'s government, or any officer of 
 H. M.'s government, or by any parochial or other local authority on his behalf, 
 and such expenses may be recovered in the same way as if they were wages duly 
 earned : Provided that this enactment shall not operate so as to affect any further 
 liability of any such owner or master for such neglect, or any remedy which any 
 seaman already possesses, (s. 7 of 1867 Act.) 
 
 Where a seaman is by reason of illness incapable of performing his duty, and it 
 is proved that such illness has been caused by his own wilful act or default, he 
 shall not be entitled to wages for the time during which he is by reason of such 
 illness incapable of performing liis duty. (s. 8 of 1867 Act.) 
 
 IV. Deaths on board 
 
 Whenever any case of death happens on board any foreign-going ship, the 
 shipping master (6) will on the arrival of such .ship at the port where the crew is 
 discharged inquire into the cause of such death, and for the purpose of such inquiry 
 he has the powers given to inspectors appointed by the Board of Trade under the 
 1st part of the Act ; and if in the course of such inquiry it appears to him that 
 any such death has been caused by violence or other improper means, "he will 
 either report the matter to the Board of Trade, or, if the emergency of the case so 
 recjuires, may take immediate steps for bringing the offender or offenders to justice. 
 (s. 269). 
 
 (h) Now superintendent of a mercantile marine office ; see 25 & 26 Vic. c. 63, s. 15 ; ante, p. 848.
 
 960 COPT OF AGREEMENT, &c. — Continued. 
 
 REGULATIONS FOR MAINTAINING DISCIPLINE SANCTIONED BY 
 THE BOARD OF TRADE IN PURSUANCE OF THE MERCHANT 
 SHIPPING ACT, 17 & 18 Vict. c. 104. 
 
 These regulations are distiuct from and in addition to those contained in the 
 Act, and are sanctioned but not universally required by law. AU or any of 
 them may be adopted by agreement between a master and his crew, and thereupon 
 tlie otfences specihed in such of them as are so adopted will be legally punishable 
 by the appropriate tines or punishments. These regulations are all numbered, 
 and the numbers of such of them as are adopted must be inserted in the space left 
 for that purpose in the agreement, and a copy of these regulations must be made 
 to correspond with the agreement by erasing such of the regulations as are not 
 adopted, and must then be attached to and kept -w-ith the agreement which the 
 master of the ship takes to sea vnth him. If the agreement is made before a 
 shipping master (a), his signature or initials must be placed opposite such of the 
 regulations as are adopted. 
 
 For the purpose of legally enforcing any of the following penalties, the same 
 steps must be adopted as in the case of other offences pimishable under this Act ; 
 that is to say, a statement of the offence must, immediately after its commission, 
 be entered in the ofl6.cial log book by the direction of the master, and must at the 
 same time be attested to be true by the signatures of the master and the mate, or 
 one of the crew ; and a copy of such entry must, be furnished, or the same must 
 be read over to the offender before the ship reaches any port or departs from the 
 port at which she is, and an entry that the same has been so furnished or read 
 over, and of the reply, if any, of the offender, must be made and signed in the 
 same manner as the entry of the offence. These entries must upon discharge of 
 the offender be shown to the shipping master (a) before whom the offender is 
 discharged, or, in the case of a home-trade ship, to some shipping master («) at or 
 near the place where the crew is discharged ; and if he is satisfied that the offence 
 is proved, and that the entries have been properly made, the fine must be deducted 
 from the offendei-'s wages, and paid over to the shipping master (a). 
 
 If, in consequence of subsequent good conduct, the master thinks fit to remit 
 or reduce any fuie upon any member of his crew, which has been entered in the 
 log, and signifies the same to the shipping master («), the fine shall be remitted 
 or reduced accordingly. If wages are contracted for by the voyage or by share, 
 the amount of tht fines is to be ascertained in the manner in which the amount of 
 forfeiture is ascertained in similar cases under sect. 252. 
 
 No. 
 
 OFFENCE. 
 
 Amount of Fine 
 or Punishment. 
 
 Signature 
 of Superin- 
 tendent. 
 
 1 
 2 
 
 4 
 
 Striking or assaulting any person on board or 
 belonging to the Sliip (if not otbenvise pro- 
 secuted) 
 
 Bringing or having on board spirituous liquors . 
 
 Drunkenness. First Offence 
 
 Do. Second and for each subsequent 
 Offence 
 
 Taking on board and keeping possession of any 
 flre-arms, knuckle-duster, loaded cane, slung- 
 shot, sword-stick, bowie knife, dagger, or any 
 other offensive weapon, or offensive instrument, 
 \vithout the concurrence of the Master, for 
 every day during which a seaman retains such 
 weapon or instrument 
 
 Five Shillings 
 Five Shillings. 
 Five Shillings. 
 
 Ten Shillings. 
 Five Shillings. 
 
 
 Signed 
 
 Shipping Master («). 
 
 (If the agreement is made before a Slupping Master.) 
 
 Note.— This document, when properly fUled up and settled, is to be placed on 
 board in such a manner as to be accessible to the crew, under a penalty not 
 exceeding £5. 
 
 («) Now superinteudent of a mercantile marine office ; see 26 & 26 Vic. c. 63, s. 16 ; ante, p. 848.
 
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 CERTIFICATE OP DlSCnAEGE FOR SEAMEX. 
 
 963 
 
 E) CERTIFICATE OF DISCHAEGE, FOR SEAMEN NOT (a) DISCHARGED 
 BEFORE A SUPERINTEDENT OF A MERCANTILE MARINE OFFICE. 
 
 Sanctioned by the Board of Trade, May 1855. In pursuance of 17 & 18 
 Vict. c. 104. 
 
 Name of Ship. 
 
 Official Number. 
 
 Port of Registry. 
 
 Registered Tonnage. 
 
 Description of Voyage 
 or Employment. 
 
 
 
 
 
 
 Name of Seaman. 
 
 Place of Birth. 
 
 Date of Birth. 
 
 
 
 
 Number of Fund Ticket 
 (if any). 
 
 Capacity. 
 
 Date of Entry. 
 
 Date of Discharge. 
 
 Place of Discharge. 
 
 
 
 
 
 
 I certify that the above particulars are correct, and that the above-named Seaman 
 was discharged accordingly. 
 
 Dated this day of 18 . 
 
 (Countersigned) Seaman. (Signed) Master. 
 
 Witness 
 
 Address of "Witness 
 
 Occupation of Witness 
 
 Note.— One of these. Certificates must be filled up and delivered to every Seaman who Is discharged 
 othei'wise than before a Superintendent of a Mercantile Marine Office. 
 
 (a) Forms of certificates of discharge, when seamen are discharged before a superintendent of a 
 mercantile marine office, are kept at the mercantile marine offices. 
 
 3q2
 
 06.1 
 
 AOOOUNT Oh' ^VAGI•S, 
 
 (F) ACCOUNT OF WAGES. 
 
 Sanctioned by the Board of Trade, February, 1864. 
 
 Kame of Ship and Official Number. 
 
 Kame of Master. 
 
 Description of Voyage or Employment. 
 
 
 
 
 Name of Seaman. 
 
 Date of Engagement. 
 
 Date of Discharge. 
 
 Rate of "Wages. 
 
 
 
 
 
 Wages : — 
 for months days . 
 
 Deductions as per contra 
 Balance due ... £ 
 
 Amount. 
 
 Deductions. 
 
 Amount. 
 
 
 
 
 Advance 
 
 Allotment 
 
 Fines and Forfeitures . . . 
 
 Total Deductions £ 
 
 
 
 
 
 
 
 Dated at the Port of 
 
 this 
 
 day of 
 
 18 
 
 Sigtvxture of Mastm: 
 
 NOTICE TO MASTERS.— One of these accounts must be filled up and delivered to each member of 
 the crew, or if he is to be paid off at a Mercantile Marine Office, to the Superintendent of that 
 Office, at least twenty-four hours before he is paid off, under a penalty not exceeding £5, and no 
 deduction will be allowed unless duly inserted, 
 [See next 3 pages. J
 
 ACCOUNT OF WAGES — Continued. 965 
 
 [The notices on this and the two following pages are indorsed on the form set 
 out on page 964.] 
 
 . ROYAL NAVAL RESERVE. 
 
 This is to give Notice, 
 
 Tliat any seaman of good character possessing the following qnalifications may 
 he inrolled as a Royal Naval Volunteer in the Reserve Force, and will thereupon 
 be entitled to the advantages and be subject to the obligations mentioned 
 below : — 
 
 Qualifications for the Reserve. 
 
 1. A volunteer must be a British subject : 
 
 2. He must be free from infirmity : 
 
 3. He must not be over thirty years of age : 
 
 4. He must within the ten years previous to his joining the reserve have been 
 five years at sea, one year of that time as an A.B. 
 
 Advantages of the Reserve. 
 
 1. A volunteer will at once receive an annual payment or retainer of £6 pay- 
 able quarterly : 
 
 2. He will, during drill, receive, in addition to the retaining fee, the same pay, 
 victualling, and allowances as a seaman of the fleet, according to his rating : 
 
 3. His travelling expenses to and from the place of drill will, when necessary, 
 be provided : 
 
 4. He will, if he fulfils his obligations and is in the reserve the requisite time, 
 receive a pension of not less than 2' 12 a year whenever he becomes incapacitated 
 from earning a livelihood, or at sixty years of age, if not previously incapaci- 
 tated : 
 
 5. He may elect either to take the whole pension himself, or to take a smaller 
 }iension for himself during his life, and to allow his wife a pension after his death, 
 for the remainder of her life : 
 
 0. He will not, on account of belonging to the reserve, forfeit any interest in 
 any Friendly or Benefit Society : 
 
 7. He will, if called out on actual service, receive the same pay, allowances, and 
 victuals, and have the same prospect of promotion and prize money, as a contin- 
 uous service seaman of the fleet, according to his rating, and he will on joining 
 receive the same clothing, bedding, and mess traps : 
 
 8. He will, if wounded or injured in actual service, receive the same pension as 
 a seaman in the navy of the same rating : 
 
 9. He will be eligible to the Coast Guard Service and Greenwich Hospital : 
 
 10. He may quit the reserve, if not at the time called out for actual service, at the 
 end of every five yeai's ; he may also qiiit it, when not called out, on payment of
 
 ^JGij j\ccouNT OF WAGES — Continued. 
 
 ^10, or on repaying the amount of the retainers he has received, v.'hen such amount 
 is less than £10 ; or, -without payment, if subsequently to enrolment he passes an 
 examination as a master or mate, and obtains bond fide employment as master or 
 mate, or if he is proved by competent medical officers to be untit for the reserve. 
 
 Obligations of the Eeserve. 
 
 1. A volunteer must attend drill for twenty-eight days each year ; he may do 
 so, so far as the convenience of the public service will permit, at any time and 
 place most convenient ; but he cannot in any case take less than seven days' drill 
 at any one time : 
 
 2. He must not, without special permission, («) proceed on a voyage that will 
 occupy more than six months : 
 
 3. He must appear before some superintendent of mercantile marine (shipping 
 master) once in every six months, i;nless he has leave to be abroad longer, and he 
 must report every change of residence, and employment : 
 
 4. In order to earn a pension he must continue in the reserve as long as he is 
 physically competent to serve, and he must also have been in the force tifteen 
 years if engaged above thirty, or twenty years if engaged under thirty. In 
 reckoning this time actual service in the fleet will count double : 
 
 5. Volunteers may be called upon for actual service in the navy by Eoyal Pro- 
 clamation. It is intended to exercise this power only when an emergency requires 
 a sudden increase in the naval force of the country : 
 
 6. A volunteer may in the first instance be called out for three years. If there 
 is then actual war, and he is then serving in one of Her Majesty's ships, he may be 
 required to serve for two years longer : but for the additional two years he will 
 receive 2f?. a day additional 2>ay : 
 
 7. Volunteers when on drill or actual service will be subject to Kaval Dis- 
 cipline : 
 
 8. A volunteer who fails to fulfil the obligations of the reserve will forfeit his 
 claim to retainer and pension, and if he fails to join when called out for actual 
 service, may be treated as a straggler or deserter from the navj'. 
 
 MONEY ORDERS. 
 
 Seamen who have friends or relatives residing at a port in the United Kingdom, 
 can send to them any portion of their earnings by means of the Seamen's Money 
 Orders, which may be obtained, free of expense, at any of the Mercantile Marine 
 (Shipping'' Offices. 
 
 (a) For conditions under wliich permission is granted, see separate bills.
 
 ACCOUNT OF vfAGES— Continued, 967 
 
 SAVINGS BANKS. 
 
 The Board of Trade being desirous of encouraging seamen to save their earnings, 
 and with a view of preventing as far as possible the risk of their losing^ or ot 
 their being robbed by tlie criinps of their hard-earned wages, have estabashed 
 Savings Banks at all the principal Mercantile Marine (Shipping) Offices in the 
 United Kingdom. The arrangements devised by tlie board to carry out their 
 object are extremely simple and easy of comprehension, and what is ot great 
 importance, they incur no expense 'whatever, nor the slightest trouble to the depositors. 
 
 Seamen are therefore recommended when they are "paid off" from their ships, 
 to take from the pay table a sum of money sufficient only for their immediate 
 expenses, and deposit for safety "the remainder of their wages m the Seamen s 
 Savings Bank. They can them withdraw, free of expense, the whole amount ot 
 their Vleposits at any port they please, or they can withdraw portions of their 
 money, hrst at one port, and then at another. 
 
 \* Interest at the rate of 6d. per Month is allowed for every £10 deposited. 
 
 Full information may be obtained on application to the Superintendent, Mer- 
 cantile Marine Office, at any port in the United Kingdom. 
 
 RELEASE BETWEEN MASTER OR OWNER AND SEAMAN ON DIS- 
 CHARGE OF LATTER BEFORE SUPERINTENDENT OF A MER- 
 CANTILE MARINE OFFICE (see sect. 175, ante, p. 671). FORMS ARE 
 KEPT AT THE MERCANTILE MARINE OFFICES.
 
 068 
 
 ACCOUNT OF CEEW OF FOEEICtN GOING 
 
 LIST C. 
 NO. 
 
 ACCOUNT OF CREW OF FOREIGN GOING 
 SHIPPING MASTER (a) 
 
 Sanctioned by the Board of Trade, August, 1860. 
 
 Name of Ship. 
 
 Official No. 
 
 Port of 
 
 Kegistry. 
 
 Port No. and 
 Date of Kegistry. 
 
 Eesristered 
 Tonnage. 
 
 MANAGING OWNER. 
 
 
 Name. 
 
 Address (State No. of house, 
 street, and town.) 
 
 
 
 
 
 
 
 
 
 
 ACCOUNT OF THE CREW AND OF OTHER PARTICULARS 
 
 Note. — These two columns are 
 to be filled in by the Shipping 
 Master (a). 
 
 Names of the MAS- 
 1 ER and the Crew 
 Christian and Sur- 
 names to be set forth 
 at full length. 
 (See note 2.) 
 
 o 
 to 
 
 < 
 
 c n 
 ^ S 
 
 CO o 
 
 -•OS 
 
 "A 
 
 Ship in wliicli lie 
 last served. Official 
 No., and Port she 
 
 belonged to, or 
 
 n.-ituro of ICniploy- 
 
 nrent. 
 
 Date and Place of Dis- 
 
 
 Merchant Seamams' Fund 
 Contributions. 
 
 charge from such Ship. 
 
 
 Period. 
 
 Amount. 
 
 Date. 
 
 Place. 
 
 
 Months. 1 Days. 
 
 £ 
 
 s- 
 
 d. 
 
 
 TOTAL 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 ,inr "^''^'''^u •":?'^'! ^'u' ' ^'^^ • ^^ exception of the No. of the List and of the first two columns, is to bo trulr filled 
 iclivcred by him to the shippmg master (o) within forty-eight hours after the ship's arrivaiat her final port of 
 not exceeumg £.->. '^ 
 
 his n^S'e^ 2.-The name of the master, with his age, place of birth, &c., must be entered in the list of the crew, 
 
 rM TW^V'',""'"*®"''^"^"^ ■■' mercantile marine office. See 25 A: 26 Vict. c. C.3. s. 15. anU, p. 8^8. 
 tWs return Srit'{ipS'l''^i''" "-f-'i^ f"^""'"^ obtain from the master of il.e sbipthe certificates (Mates. RV2, 
 ims return, bliould the master have died his cenmcate should also be obtained and for\varded in like manner.
 
 SiUr TO BE DELIVERED, &C. 
 
 969 
 
 PORT OF 
 
 Amount of Fee. £ 
 
 SHIP, TO BE DELIVERED AT THE END OF THE VOYAGE TO THE 
 AT THE ABOVE PORT. 
 
 In pursiiance of 17 & 18 '\'ict. c. 104. 
 
 
 MASTKR. 
 
 First port of 
 Departure. 
 
 Date of 
 Departure. 
 
 Final Port of Destination 
 in tlie United Kingdom. 
 
 Date of 
 Arrival. 
 
 
 Name. 
 
 No. of 
 Certificate. 
 
 Address. (State No. of bouse, 
 street, and town. 
 
 
 
 
 
 
 
 
 
 REQUIRED BY LAW, IN RESPECT OF THE ABOVE-MENTIONED VOYAGE. 
 
 Date and Place of 
 joining this .Ship. 
 
 Date. 
 
 Date. Place, and Cause of Death, 
 
 or Leaving this Ship, abo of 
 
 llainiing or Hurt. 
 
 
 Date. 
 
 Place. 
 
 Cause (sec Note 3. 
 
 Report of Character 
 {Sec Sote A). 
 
 
 Amount of 
 Forfeitui'es 
 to Owner. 
 
 Amount of 
 Fines pay- 
 able to 
 Shipping 
 Master (a). 
 
 up and and signed by the niasfcr of every vessel, whether British or Colonial, of whatever tonnage, and to be 
 destiuatii.in in the United Kingdom, or upon the discharge of the crew, ■nhiehever flrst happens, under a penalty 
 
 and also the number of his fund i-egister ticket (if any), in order that his contribution maybe entered opposite 
 
 enters must be stated under the head of •' Cause of leaviiu/ the s7i ip," 
 
 for (very good) ; G. for (good) ; Ji. for (middling) ; i. for (indifferent). If the master dcclinns to report as In any 
 .•ial qualifications or disqualitications, e.g. '• helm," \. c,.; '•dcanliness," g. ; '• .inhrictii,'' 
 
 may be inserted any special < . 
 
 of the service, qnafiflcation, conduct, or character of any seaman, knowing 
 
 £100, or by imprisonment with or without hard labour for .six months. 
 
 the same to be false, may either bo 
 
 or E 2) belonging to any seaman who has died or deserted, and forward the same to the Kegistrar-Geucrnl ■nith
 
 970 
 
 ACCOUNT OP CEEW OF FOKEIGN GOING 
 
 ACCOUNT OF APPRENTICES OX BOAKD. 
 
 Xames of Appvenlices. 
 Christian and Surnames at full length. 
 
 Place of Eirth, 
 
 stating Name 
 
 of Town or County. 
 
 Registry or Assignment 
 of Indenture. 
 
 Date of. 
 
 Port of. 
 
 How disposed of. 
 
 Date. 
 
 Port. 
 
 Dated at 
 
 tlie. 
 
 dav of 
 
 IS. 
 
 Received liy Shipping Master (a). 
 
 The folloA\-iiig is indorsed on tlic 
 PARTICULARS OF ALL BIRTHS xVND DEATHS (h) OF PERSONS OTHER TFIAN 
 
 BOARD DURING THE VOYAGE; PURSUANT TO Skc. 273 OF "THE MER- 
 
 EIRTHS. 
 
 Names and Description 
 of Parents. 
 
 Date of Child's Pex of 
 Birth. Child. 
 
 Christian Name given 
 to Cliild. 
 
 When given. 
 
 By whom Christened. 
 
 
 ' 
 
 
 
 
 
 
 
 ilAK 
 
 Kamcs and Description of Parties 
 
 Note .■;.— Particulars of the monies due to each deceased seaman, and of his clothes and effects, and of 
 furnished by the shipping master (</). It any master fails to give a true account of these particulars, he v>il! bo 
 not exceeding .toO. 
 
 («) Now superintendent of a inereantile marine office. Sec 23 & 26 Vict. c. Co, s. l.j ; ante, p 
 (b) When the Deceased is a Member of the Crew the particulars are to be inserted in the pro 
 
 848. 
 proper columns on
 
 SHir TO UE DELIVERED, &c. — Continued. 
 
 971 
 
 PAPtTICULARS RELATIXG TO WAGES AXD EFFECTS OF SEAMEN" DECEASED DUniNG THE VOYAGE 
 
 (See Sole 5.) 
 
 
 Names of Deceased Seamen. 
 Christian and Surnames at iull lengtli. 
 
 No. of Fund 
 
 Ticket, 
 or Certificate 
 
 of K V 2. 
 
 (if any). 
 
 Xet Amount Due paid 
 
 to Shipping Master (rt), 
 
 as per Account in 
 
 I"orm KK. 
 
 Particulars of Effects (if anv) 
 
 delivered to Shipping Master (o), 
 
 as per Account in Form K.K. 
 
 
 
 TOTAL- - - 
 
 & 
 
 s. 
 
 d. 
 
 
 
 
 
 
 I Declare the above Account to be true. 
 Skaied 
 
 Master. 
 
 preceding form. 
 
 THE CREW AND OF ALL MARRIAGES THAT HATE OCCURED ON 
 
 CHANT SHIPPING ACT, 1854," 17 & 18 Vict. Cap. 104. 
 
 DEATHS. 
 
 
 Name and Description of Deceased. 
 
 Sex. 
 
 Age. 
 
 Place of Birlh. 
 
 Cause of Death. 
 
 Date of Death. 
 
 
 
 
 
 
 
 
 RIAGEt 
 
 Places of Birth. 
 
 Date of Marriage. 
 
 Bj' whom Married. 
 
 .MASTER. 
 
 deductions, if any, are to accompany this return in a separate account, in a fonn (KK) which will be 
 liable to forfeit a sum not exceeding treble the value of the money and effects not accounted for, or to a penalty 
 
 Ihc other side.
 
 972 
 
 ACCOUNT OF VOYAGES, &C., OF HOME 
 
 LIST D. 
 No.. 
 
 POET OF. 
 
 ACCOUNT OF VOYAGES AND CREW OF 
 
 SHIPPING MASTER (a) 
 
 Sanctioned in- the Board of Trade, August, 
 
 
 Official 
 
 Port of 
 
 Port No. and Date 
 
 Registered 
 Tonnage. 
 
 MANAGlNTx 
 
 
 ^•■'™<^ of Ship. ^-umber. 
 
 , 1 
 
 Eegi^trJ•. of Register. 
 
 Name. 
 
 
 
 
 
 
 
 
 
 ACCOUNT OF 
 
 ACCOUNT OF THE CREW AND OF OTHER PARTICULARS REQUIRED 
 
 EMPLOYMENT OF 
 
 Note.— 77(fev /wo cohiynns en to he 
 jilUd in bii th.c .Shij^piicj Master (a). 
 
 "^ £ X "-■ ~ 
 
 'A ^ H 
 
 Age. 
 
 " 3 
 
 No. of It'nnil TicJiot 
 (If any). 
 
 d 
 
 Z'jT. ^ 
 
 III 
 
 
 ilercliant Seamen's Fund Contributions. 
 
 
 Period. 
 
 Amount. 
 
 
 Months. 
 
 Day.<. 
 
 £ 
 
 *■. 
 
 a. 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 TOTAL - 
 
 
 1 
 
 
 Note l.— This li>t, with tlio excr'ption of the nnnilier of the li.st and of the first tw .. rolnuin.s. is to be tnily 
 with the shipiiiiiir master («) at stnne port in thf United Kiugdom. within twenty one ilays after the 30th June and 
 
 Note i.- 'J he name uf the ma.^lel•, with hi^ age, place of birth, ic, must be catered in the list of the crew, 
 name. 
 
 .\'<iTE 3.— If any one of the crew enters Her Majesty's service, tlte name of the Queen's ship into which he 
 
 Note .5. — A statement of the period tKicupied in each voyage, and the nature thereof, must be entered under 
 
 <■«) Now sujierintendent of a meivantiie mainne office. .See 25 & 26 Vict.c. i;3. s. 1.5 ; unt<\ p. S48. 
 ('>) The shippini; master [supra ii. . n)] .shouUrobtain from the master of the ship the certiticate (mates KV 2 
 this Return. 5-hoiild the master h^vc died his certiticate should also be obtained atid forwarded ui lik manner.
 
 Tlv'ADE SJUP TO BE 1>E[,I\ ELiET, &C, 
 
 973 
 
 Amount of Fee £ 
 
 HOME TRADE SHIP, TO BE DELIVERED HALF-YEARLY TO THE 
 AT THE ABOVE PORT. 
 
 1860. In pursixance of 17 & 18 Vict. c. 104. 
 
 OWNER. 
 
 MASTER. 
 
 Date of 
 
 Commencement 
 
 of Half -Year. 
 
 Date of 
 
 Termination of 
 
 Half-Year. 
 
 Address (state No. of House, 
 Street and Town). 
 
 Name. 
 
 No. of 
 Certificate. 
 
 Address (state No. of House, 
 .Street, and Town). 
 
 
 
 
 
 
 
 THE VOYAGES (-3). 
 
 BY LAW, IN RESPECT OF THE ABOVE-MENTIONED VOYAGES OR 
 THE SAID SHIP. 
 
 Date and Place of Discharge 
 from such Ship. 
 
 Date and Place of joining 
 this Ship. 
 
 3._| . 
 S?B 
 
 T 2 2. § 
 
 Date, Place, and Cause of Death, 
 
 or Leaving thi» Ship, also of 
 
 MuiuiiuL' or Hurt 
 
 Date. 
 
 Place. 
 
 Date. 
 
 Place. 
 
 Date. 
 
 Place, 
 
 Cause (See note 3). 
 
 
 
 
 
 • 
 
 
 
 
 filled up and signed by the owner or master of every home trade vessel, of whatever tonnage, and to be deposited 
 
 the 31st December in every year, under a penalty not exceeding £5. 
 
 also the number of his Fund register ticket (if any), in order that liis contribution may be entered opposite his 
 
 enters must be stated imder the head of " Cause of leavivg the Shij)-" 
 this heading. 
 
 orE 2) belonging to any seaman who has died or deserted, and forward the same to the Rcgi-trar-General whh
 
 974 
 
 ACCOUNT OP VOTACtES, (kc, OF HOME 
 
 ACCOUNT OP APPREXTICIES ON BOARD. 
 
 
 Name? of Ajiprontice?. 
 Christian ;iml Siiruames at full Length. 
 
 o 
 
 Place of Birth, 
 stating Xame of 
 Town or Coiiutj-. 
 
 Registry of Indenture. 
 
 Registry of Assignment 
 (if any). 
 
 
 Date of 
 
 Port of 
 
 Date of 
 
 Port of 
 
 
 
 
 
 
 
 
 
 
 deceived at. 
 
 -the 
 
 day &f_ 
 
 .187. 
 
 i^y- 
 
 Sliipping Master (a). 
 
 [The following is indorsed on the 
 PARTICULAES OF ALL BIRTHS AXD DEATHS (b) OF PEESONS OTHER THAN 
 
 DURIXG THE HALF-YEAR ; PURSUANT TO Sect. 273 OF 
 
 BIRTH.'i 
 
 Names antl Description 
 of Parents. 
 
 Date of 
 Child's Bii-th. 
 
 Sex of 
 Child. 
 
 Christian Name given 
 to Child. 
 
 When given. 
 
 Bv whom Christened. 
 
 MAE- 
 
 Names and Descriptions of Parties. 
 
 Note 4. — Particulars of the monies due to each deceased seaman, and of his clothes and effects, and of 
 the shipping master (a.) If any master fails to give a true account of these particulars, he will be liable to forfeit 
 ing .^50. 
 
 (n) See antf. p. 972 n. (a). 
 
 (b) Note.— Wlien the deceased is a member of the crew, the particulars are to be inserted in the proper 
 columns on the other side.
 
 TRADE sHir TO BE DELIVERED, &c. — Continued. 
 
 975 
 
 PARTICULARS RELATING TO WAGES AXD EFFECTS OP DECEASED SEAMEN (see A'oZs 4). 
 
 Xamos of Deceased Seaman. 
 Chriotiau and Sui'iiamcs at full Length. 
 
 Xo. of Fund 
 'Jicket. 
 
 or Certificate 
 or RV 2. 
 
 (if any). 
 
 TOTAL 
 
 Net Araount Duo paid 
 
 to Shipping Master («). 
 
 as per Account in 
 
 Form KK. 
 
 Particulars of effects (if any) 
 
 delivered to Shipping Master'(o), 
 
 as per Account in Form KK. 
 
 I declare tlie aLove account to be true. 
 Signed 
 
 Master or Owner. 
 
 preceding form.] 
 
 THE CREW AND OF ALL MARRIAGES THAT HAVE OCCURRED OX BOARD 
 
 "THE MERCHANT SHIPPING ACT, 1854," 17 & 18 Vict. c. 104. 
 
 
 DEATHS. 
 
 
 Name and Description of Deceased. 
 
 Sex. 
 
 Age. 
 
 Place of Birth. 
 
 Cause of Death. 
 
 Date of Death. 
 
 
 
 
 
 
 
 
 RIAGE.S. 
 
 
 
 Places of Birth. 
 
 Date of Marriage. 
 
 By whom Married. 
 
 
 
 
 deductions, if any, are to accompany this return in a separate accoimt in a Form (KK) whicli ivill be furnished by 
 a sum not exceeding treble tlic value of the money and effects not accounted lor, or to a pemilty not exceed- 
 
 Jfaster,
 
 970 , FOEM OF A nOTTOMEY EOXD, 
 
 Form of a Bottomry Bond. 
 
 Know all men by these presents, that I, A. B., commander and two-thirds 
 owner of the ship Exder, for myself, and C. D., remaining third o^vner of the 
 said ship, am liehl and firmly bound unto E. F. in the penal sum oftwo thousand 
 pounds sterling, for tlie ])ayment of -which well and truly to be made unto the said 
 E. F., his heirs, executors, administrators, and assigns, I hereby bind myself, my 
 lieirs, executors, and administratoi's, tirmly by these presents. In Avitness Avhereof 
 I have hereunto set my hand and seal, this i4th day of December, in the year of 
 our Lord, 1796. 
 
 Whereas the above-liound .1. B. hath taken up and received of the said E. F. 
 the full and just sum of one thousand pounds sterling, which sum is to run at 
 resjjondentia on the block and freight of the ship Exeter, whereof the said A. B. 
 is now master, from the jjort or road of Bombay on a voyage to the port of 
 London, having permission to touch, stay at, and proceed to all ports and places 
 within the limits of the voyage, at the rate or premium of twenty-tive per cent. 
 (25 per cent.) for the voyage. In consideration whereof usual risks of the seas, 
 rivers, enemies, lires, inrates &c„ are to be on account of the said E. F. And for 
 the further security of the said E. F. the said A. B. doth by these presents mort- 
 gage and assign over to the said E. F., his heirs, executors, administrators, and 
 assigns, the said shi}) Exeter and her freight, together with all her tackle, 
 ajiparel, &c. And it is hereby declared, that the said ship Exeter and her freight 
 is thus assigned over for the security of the respondentia taken up by tlie said 
 A. B., and shall be delivered to no other use or purpose whatever, until payment 
 of this bond is lirst made, with the jiremiMm that may become due thereon. 
 
 Now the condition of this obligation is such, that if the above-bound A. B., 
 his heirs, executors, or administraturs, shall and do well and truly pay, or cause 
 to be paid, unto the said E. F., or his attorneys in London legally authorized to 
 receive the same, their executors, administrators, or assigns, the lull and just sum 
 of 1,000/. sterling, being the jHincipal of tliis bond, together with the premium 
 wliich shall become due thereupon, at or before the expiration of ninety daj'S 
 after the safe arrival of the said ship Exeter at her moorings in the river Thames, 
 or in case of the loss of the said ship Exeter such an average as by custom shall 
 have become due on the salvage, then this obligation to be void and of no effect, 
 otherwise to remain in full force and virtue. Having signed to three bonds of the 
 same tenor and date, the one of which being accom2:)lished, the other two to be 
 void, and of no effect. 
 
 A. B. for self } , . 
 and a D. (a) ( <^^' ^'^ 
 
 Signed, sealed, and delivered (where no stamped ) G. H. 
 paper is to be had) in the presence of j J. K. 
 
 (a) In this bond, the occasion of borrowing the on a voyage fi-oni Bengal to London, was obliged 
 money is not expressed, but the money was iu to put back to Bombay to repair. ScetheiUtier, 
 reality borrowed to refit the sliip, which, being AVhitford, 1 Hob. Ad. Rep. 176,
 
 FORM OF A J]OTTOMRY BILL. 977 
 
 Form of a Bottomry Bill. 
 
 To ALL MEX to wliom tliese presents slaall come. 1, A. B. of Bengal, mariner, 
 part-owner and master of the ship called the Exder, of the buithen of five 
 hundred tons and upwards, now riding at anchor in Table Bay, at the Cape of 
 Good Hope, send greeting : 
 
 Whereas I, the said A. B., part-owner and master of the aforesaid ship called 
 the Exeter, now in prosecution of a voyage from Bengal to the port of London, 
 having put into Table Bay for the purpose of procuring provision and other sup- 
 plies necessary for the continuation and performance aforesaid, am at this time 
 necessitated to take up upon the adventure of the said ship, called the Exeter, the 
 sum of one thousand pounds, sterling moneys of Great Britain, for setting the said 
 ship to sea, and furnishing her with provisions and necessaries for the said voyage, 
 which sum C. D. of the Cape of Good Ho]:)e, master attendant, hath at my request 
 lent nnto me, and supplied me witli at the rate of twelve hundred and twenty 
 pounds sterling for the said one thousand pounds, being at the rate of one hundred 
 and twenty-two pounds for every hundred pounds advanced as aforesaid, during 
 the voyage of the said ship from Table Bay to London. Now know ye, that I, 
 the said A. B., by these presents, do, tor me, my executors and administrators, 
 covenant and grant to and with the said C. D. that the said ship shall, with the 
 first convoy which shall offer for England, after the date of these presents, sail 
 and depart for the port of L ondon, there to finish the voyage aforesaid. And I, 
 the said A. B., in consideration of the sum of one thousand pounds sterling to me, 
 in hand paid by the said C. D. at and before the sealing and delivery of these 
 presents, do hereby bind myself, my heirs, executors, and administrators, my 
 goods and chattels, and particularly the said ship, the tackle and ajDparel of the 
 same, and also the freight of the said ship, which is or shall become due for the 
 aforesaid voyage from Bengal to the port of London, to pay unto the said C. D., 
 his executors, administrators, or assigns, the Sum of twelve hundred and twenty 
 pounds of lawful British money, within thirty days next after the safe arrival of 
 the said ship at the port of London from the same intended voyage. 
 
 And I, the said A. B., do, for me, my executors and administrators, covenant 
 and grant to and with the said C. D., his executors and administrators, by these 
 presents, that I, the said A. B., at the time of sealing and delivering of these 
 presents, am a true and lawful part-owner and master of the said ship, and have 
 power and authority to charge and engage the said ship with her freight as 
 aforesaid, and that the said sliip, with her freight, shall at all times after the said 
 voyage be liable and chargeable for the payment of the said twelve hundred and 
 twenty pounds, according to the true intent and meaning of these presents. 
 
 And, lastly, it is hereby declared and agreed, by and between the said parties 
 to these presents, that in case the said ship shall be lost, miscarry, or be cast away 
 before her arrival at the said port of London from the said intended voyage, that 
 then the payment of the said twelve hundred and twenty pounds shall not be 
 demanded, or be recoverable, by the said C. D., his executors, administrators, or 
 assigns, but shall cease and determine, and the loss thereby be wholly borne and 
 sustained by the said C. D., his executors and administrators, and that then and 
 from thenceforth every act, matter, and thing herein-mentioned on the part and 
 behalf of the said A. B. shall be void ; anything herein-contained to the contrary 
 notwithstanding. 
 
 In witness whereof the parties have interchangeably set their hands 
 and seals to four bonds of this tenor and date, one of which being paid, 
 the others to be null and void. 
 
 At the Cape of Good Hope, this 15th day of November, 
 in the year of our Lord one thousand seven hundred and 
 ninety-seven. 
 
 G. H. A.B. (l. s.) 
 
 I.K.
 
 978 rORM OF RESrONPENTIA EONP. 
 
 The Form of Fegpondentia Bond on a Voyage to the East Indien. 
 
 Know all men, by tliese presents, that we, James Peter Fearon, commander of 
 the ship Belridere, m the ser\dce of the Honoiu'able East India Company, and 
 Peter Douglas of Fitzroy Srpiare, are held and firmly boimd to Hans Busk, of 
 New Broad Street, London, merchant, in the sum or penalty of fifteen hundred 
 pounds of good and lawful money of Great Britain, to be paid to the said Hans 
 Busk, or to his certain attorney, executors, administrators, or assigns ; to Avhich 
 pajTiient, well and truly to be 'made, we bind ourselves, jointly and separately, 
 our heii-s, executors, and administrators, firmly by tliese presents. Sealed Avitli 
 our seals. Dated this fourth day of 'Max, in the forty-first year of the reign of 
 our Sovereign lord George the Third, by the grace of God, of the United Kingdom 
 of Great Britain and Ireland, King, Defender of the Faith, and in the year of our 
 Lord one thousand eight hundred and one. 
 
 Whereas the above-named Hans Busk has, on the day of the date above written, 
 advanced and lent unto tlie said James Peter Fearon and Peter Douglas the sum 
 of seven hundred and fifty pounds, upon the goods and merchandises and eftects 
 laden and to be laden on board the good ship or vessel called the Belvldere, of the 
 l)urthen of 987 tons or thereabouts, now riding at anchor in the river of Thames, 
 outward-bound to China, and whereof James Peter Fearon is commander, by his 
 acceptance of a bill of exchange to that amount at four months' date for the 
 account of them the said James Peter Fearon and Peter Douglas : Now the con- 
 dition of this obligation is such, that if the said ship or vessel do and shall with 
 all convenient speed proceed and sail from and out of the said river of Thames on 
 a voyage to any port or place, ports or places, in the East Indies, China, Persia, 
 or elsewhere beyond the Cape of Good Hope, an<l from thence, do and shall sail, 
 return, and come back into the said river of Thames at or before the end and 
 expiration of thirty-six calendar months, to be accounted from the day of the date 
 aljove -written, and there to end her said intended voyage (the dangers and 
 casualties of the seas excepted) ; and if the said James Peter Fearon and Peter 
 Douglas, or either of them, their or either of their heirs, executors, or adminis- 
 trators, do and shall within thirty days next after the said ship or vessel shall 
 be arrived at her mooring in the said river of Thames from her said intended 
 voj^age, or at or upon the end and expiration of the said thirty-six calendar 
 months, to be accounted as aforesaid (which of the said times shall first and next 
 happen), well and truly -pay or cause to be paid unto the said Hans Busk, his 
 executors, administrators, or assigns, the full sum of one thousand and twenty 
 pounds of lawful money of Great Britain, together with thiiteen pounds ten 
 shillings of like money per calendar month, for each and every calendar month, 
 and so proportionably for a greater or lesser time than a calendar month, for all 
 such time and so many calendar months as shall be elapsed and I'un out of the 
 said thirty-six calendar months over and above twenty calendar months, to be 
 accounted from the day of the date above written, or ii" in the said voyage, and 
 within the said thiiiy-six calendar months to be accounted as aforesaid, an utter 
 loss of the said ship or vessel l)y fire, enemies, men-of-w^ar, or any f)ther casualties 
 sliall unavoidably happen, and the said James Peter Fearon and Peter Douglas, 
 their heirs, executors, or administrators, do and shall -n-ithin six calendar months 
 next after such loss well and truly account for (upon oath if required), and pay 
 unto the said Hans Busk, his executors, administrators, or assigns, a just and 
 proportionable average on all the goods and effects of the said Janies Peter Fearon 
 carried from England on boartl the said ship or vessel, and the net proceeds 
 thereof, and on all other goods and effects which the said Janies Peter Fearon 
 shall acquire during the said voyage, for or by reason of such goods, merchandises, 
 and eft'ects, and Avhich shall not" be unavoidaUy lost, tlien the above-written 
 obligation to be void, and of none effect, else to stand in full force and virtue.
 
 FORM op HYPOTHECATION OF SHIP, &0. 979 
 
 Form of an Instrument of Hypothecation of Ship and Ganjo. 
 
 Know all to whom this mstrument of bond and bill of maritime risk and 
 bottomry may come, that in the year from the birth of our Lord Jesus Christ 
 1801, on the 31st day of the month of January, in the city of Lisbon, in my office 
 personally appeared Jacomo Mazzola, captain of the imperial ship called the 
 Gratitudine, whom I know to be the real person ; and he declared t o me, the 
 notary, in the jiresence of the witnesses hereinafter mentioned, that within twenty- 
 four hours after the arrival of his said ship at London, or any other \:>ort, and 
 previous to beginning to make any delivery of the cargo at the port aforesaid, or 
 any other port, that he the captain, or whomsoever may act in lieu of him, or in 
 case of his absence, or perform the duties of his said quality, shall or will pay l^y 
 this bill of risk, sea exchange, and bottomry, to Francis Manoel Calvert, jsrofessed 
 in the order of Christ, or to his order, the sum of ^5,273 12s. sterling, principal 
 and premium of risk and sea exchange, at the rate of 16 i:iev cent., the which 
 principal he acknowledged to have received here of the said Francis Manoel 
 Calvert, in the good current money of this kingdom, under the denomination of 
 true and legitimate money of sea exchange and bottomr^^, on the hull, keel, and 
 appurtenances of the aforesaid ship, and therewith to supply the wants of the 
 repairs, caulking, and of the cargo of the same, on which he had effectively 
 invested it ; the said Calvert taking upon himself, and in consideration of the 
 aforesaid premium of 16 per cent, voluntarily agreed for and settled between 
 them, to run the sea risk on the said hull, keel, and appurtenances and cargo of 
 the said ship, in her ensuing voyage, which the said captain is about prosecuting 
 from this port of Lisbon to that of London ; — these being the risks which the 
 aforesaid Francis Manoel Calvert takes on himself, and is to run, sucu as of the. 
 sea, winds, fire, stranding, and shipwreck, enemies and false friends, detentions of 
 princes, and reprisals, during the whole of the said voyage, excepting nevertheless 
 those of barratry of the master, and of average as well particular as general, the 
 which are expressly excluded ; the which risk shall commence to run from the 
 hour the ship shall heave her first anchor to set sail from this jsort to tliat of 
 London, and shall cease in twenty-four hours after having come to an anchor ; 
 and for the ready payment of the aforesaid sum, he the captain binds himself, and 
 his effects in general, dues and funds, both in actual possession and future, and by 
 special mortgage the cargo, freights due or that may become due ; and in case of 
 failure of the prompt payment in due time he binds himself, under this clause of 
 mortgage to pay to him or his order, for all the delay until full payment, at and 
 after the rate of six per cent, per annum ; and there being also present Andrew 
 Belucci, mate of the said ship, l)y whom it was declared, that in case of the absence 
 of the aforesaid captain, he bound himself to fulfil the contents of this bond they 
 thus executed and accepted, after these presents being read to them, and I the 
 notary in the name of whomsoever it may concern being absent ; to all whicli 
 were witnesses present, Joav Pedro Roeks, who also acted as interpreter, as well 
 for the captain as for the mate, he being there vice-consul, and Manoel Eugenio 
 Coetho, who together with the jxirties signed thereto. J. Joge de Almeida Rorig 
 the notary wrote it : Jacomo Mazzola, Andrew Belucci, Joav Pedro Hoelvs, IManoel 
 Eugenio Coetho ; and J, Joge de Almeida Rorig, notary public of notes in the 
 city of Lisbon and its district of his Royal Highness the Prince Regent our lord, 
 whom God preserve, caused this instrument to be transcribed from my book of 
 notes, to whicli I refer myself, and have subscril^ed it, and signed it in public 
 form. 
 
 In testimony of the truth, 
 
 Joge de Almeida Rorig. 
 
 Whose handAmting is certified by 
 
 Fraxcis Arbouin, 
 
 Vice-Consul. 
 Francis Manoel Calvert.
 
 080 rOKM OF SHIP PKOTEST, 
 
 Entnj, or Note of a Protest of a Ship. —Sec ante, p. 326. 
 
 On this day of in the year of oux Lord one thousand eight 
 
 hundred and personally appeared and presented himself at the office of 
 
 B. B., notary public, C. D., master of the ship or vessel, the Mary, which 
 
 sailed on a voya.i^e from on the day of last, and arrived 
 
 at on the day of instant, laden -n-itli a cargo of 
 
 And the said master hereby gives notice of his intention of protesting, and 
 causes this note or minute, of all and singular the premises, to be entered in this 
 register. 
 
 CD. 
 
 Ship Protest {common form), in consequence of Loss or Dconafjc hy Storms and 
 tempestuous Weather, and also l»j Jettison. 
 
 By the public instrument of protest hereinafter contained or annexed hereto. 
 
 Be it known and made manifest unto all people, that on the day of 
 
 in the year of our Lord one thousand eight hundred and person- 
 
 ally came and appeared before P. B., notary public, duly authorized, admitted, 
 and sworn, residing and practising in in the county of in the 
 
 United Kingdom of Great Britain and Ireland, and also a master extraordinary of 
 the High Court of Chancery in England, A. B., master of the ship or vessel, the 
 Eleanor Elspet, belonging to Liverpool, C. D., chief mate, and E. F., carpenter of 
 the said vessel, who did, severally, duly and solemnly declare and state as follows : 
 that is to say, that these ai)pearers and the rest of the crew of the said vessel set 
 .sail in her from Calcutta on the 12th of August last, bound on her voyage from 
 thence to Liverpool, laden with a cargo of general goods, the vessel being then 
 tight, staunch and strong, well manned, victualled, and sound, and in every respect 
 fit to perform the said intended voyage. 
 
 That they proceeded on their voyage with fine weather and variable winds, 
 accompanied occasionally with rain," imtil the 19th, when they had fresh gales 
 from the south-west, and passing squalls, and a heavy sea running, and they 
 shipped large quanties of water on deck and over all parts of the ship, the vessel 
 plunging the bowsprit end under water ; at noon, being in latitude fourteen degrees 
 twenty-two minutes north, longitude eighty-eight degrees thirteen minutes east, 
 they had fresh gales soath-west by west, with showers of rain ; at thirty minutes 
 past one they got the bowsprit secured, the ship labouring and shipping great 
 quantities_ of water. On the 20th, they had fresh gales and squally wea'ther, 
 accompanied with rain ; at noon they had fresh winds from the south-west, and a 
 heavy sea running, the ship labouring very much, and every attention being paid 
 to the pumps. That they continued on their voyage with variable winds and 
 cloudy weather, accompanied occasionally with rain, thunder, and lightning, but 
 ■^^dthout any extraordinary occurrence, iintil the 30th of September, when they 
 arrived oft' the Isle of France, and at four p.m. came to anchor at Port Louis, took 
 in water there, and on the 3rd of October again proceeded on their voyage, with 
 fine weather, until the 21st of October, which commenced ^\'ith strong Avinds from 
 the north-west and a heavy confused sea, the ship labouring very much. Thus 
 they proceeded on their voj^age, and on the 14th of November', at three p.m., 
 made the island of St. Helena, bearing north-west by west. On the 15th, at 
 lour, a.m, kept away for the port, took in water there, and at thirty minutes past 
 elfcvtn bore away, and set all possible sail. That they proceeded on their course, 
 and on the 18th of December, being in latitude thirty-two degrees west, had fresh 
 gales from west-north-west, with cloudy weather and frequent showers of rain, 
 the ship labouring veiy much, and continually shipping heavy seas over all, .md 
 filling the decks Mith water. At fifteen minutes past eleven a.m., kept the ship 
 away to go to eastward of the Azores, the squalls being very heavv, and the sea 
 continually breaking over her, and the same bad weather continued until mid-
 
 FOEM or SHIP PROTEST. 981 
 
 iiiglit, -witli a cross-sea running. On tlie 19t!i more moderate, but at ten p.m. 
 had ireslming winds from the north-east to north, the gale increasing ; at 
 eleven p.m. carried away the jib-sheet, and tore the sail nearly all to pieces before 
 they could stow it. On the 21st they had more moderate weather, and proceeded 
 on their voyage. On the 24th they made the island of St. Mary's, distant eight 
 leagues. On tlie 25th, the wind increased from the west north-west ; at one a.m. 
 they had strong winds from the westward, accompanied Avitli rain, which carried 
 away their foretop-mast studding-sail boom ; at thirty minutes past two they had 
 a heavy sea from the north-west ; at thirty minutes past seven a.m. the ship 
 laboured very much, and shipping tons of water on deck, the main deck continually 
 full of water, and they were trying the pumps every opportunity, and pumping 
 every four hours. On the 27th they had steady winds from the south-west, and 
 cloudy weather at noon, in latitude forty-one degrees twenty-seven minutes north, 
 longitude twenty degi-ees forty-three minutes Avest ; at three p.m. double reefed 
 the foretop-sails ; at eight, they had strong winds with heavy squalls from the 
 ■\vest-south-west, the sea getting up considerably ; at nine, they had tremendous 
 gales from the west-south-west, and a heavy sea broke on board, which carried 
 away the long boat and skiff, bulwark rails, stanchions, and swept the deck of 
 spars and various other articles, and the pumps were instantly set on ; at ten p.m. 
 had tremendous gusts, and a sea broke into the starboard-quarter boat, and burst 
 her, and she was necessarily obliged to be cut away. That in the course of the 
 night they were continually pumping, found the ship to make a great deal of 
 Avater, and on getting a light forward on the main deck, in order to ascertain the 
 extent of the damage, found the deck stove in very badly, and supposed it origi- 
 nated from the force of the boat or spars going overboard ; the water still gaining 
 on them, they Avere obliged to continue at the pumps throughout the night, and 
 they found several stanchions gone on the larboard side, and also all the oars, 
 rudders, and everthing belonging to the long-boat and skiff, Avhich were lashed 
 inside, also six Avater casks, and six more from the decks, Avhich were properly 
 lashed ; several spars Avere lost, Avhich Avere partially washed over the side, and 
 Avhich they Avere obliged to throAV aAvay, not being able to get them in ; the best 
 maintop-mast studding-sail, and all the studding-sail yards Avere washed overboard, 
 Avith all the studding gear and other ropes, and every light article about the decks, 
 although everything had been securely lashed before the bad Aveather commenced. 
 That the 28th commenced Avith heavy gales from the north-Avest to north-north- 
 Avest, being in latitude forty-tAVO clegrees forty-live minutes north, longitude 
 eighteen degrees Avest, the ship in the same state as on the preceding day ; at 
 daylight no alteration, the ship a perfect wreck, and they cleared up Avhat spars 
 remained, and secured them ; and finding the ship straining exceedingly, and 
 being afraid of losing more stanchions, they Avere obliged to cut the guns adrift, 
 and put them overboard Avith the carriages, the shot having previously rolled 
 out of the shot-rack overboard ; and they were obliged, in order to lighten the 
 ship, and for the safety and preservation of the vessel, crew, and rest of the cargo, 
 consisting of [here describe the goods or articles wluntarily throivn overboard for 
 the common benefit of all concerned] which Avas accordingly done ; at noon they 
 had fresh Avinds, Avest by north, and cloudy weather, Avith a heavy sea running, 
 and still shipping much AA-ater upon deck, and pumping ship every hour ; and 
 dm-ing the remainder of the day they had strong squalls at intervals, until mid- 
 night. That they continued on their voyage, generally Avith strong squalls, iresh 
 gales, and cloudy weather, Avith hail and showers of rain, accompanied Avith 
 lightning and heaA^y seas, and constantly shipping seas, the pumps being attended 
 to every hour, until the 1st of January, Avhen at noon they had fresh Avinds from 
 the south- Avest ; at ten p.m. the Skerries light bore east-north-east, distant three 
 leagues ; at one a.m. on the third, they rounded the Skerries ; at two, took a pilot, 
 on board ; at daylight they made all possible sail for the neAV channel, and got 
 into the river Mersey, in the port of Liverpool, at three p.m. ; and at six p.m. they 
 got safely moored in the Prince's Dock. And this appearer, A. B., further de- 
 clares, that on the foUoAving day he appeared at the othce of the said notary, and 
 caused his protest to be duly noted. 
 
 And these appearers do protest, and I, the said notary, do also protest, against 
 the aforesaid bad weather, gales, storms, accidents, and occurrences, and all loss or
 
 982 POEM OF SHIP PEOTEST. 
 
 damage occasioned tliereljy, the same heing cntirchj oicing to the facts and circuvi- 
 stances before mentioned («). 
 
 "We, A. B., C. D., E. F., do solemnly and .sincerely declare (h), that tlie foregoing 
 statement is correct, and contains a trae account of the facts and circumstances ; 
 and yve make this solemn declaration, conscientiously believing the same to be 
 true, and by virtue of the provisions of an Act made and passed in the sixth year 
 of the reign of his late Majesty, King William the Fourth, entitled " An Act to 
 repeal an Act of the present Session of Parliament, entitled ' An Act for the more 
 etlectual abolition of Oaths and Athrmations, taken and made in various dejjart- 
 ments of the State, and to substitute Declarations in lieii thereof, and for the more 
 entii-e suppression of A^oluntary and extra-judicial Oaths and Affidavits, and to 
 make other provisions for the abolition of unnecessary Oaths.' " 
 
 A.B. 
 CD. 
 E. F. 
 
 Thus declared and protested, in due I'urni of law, at the office of me, 
 the said notary, at , the day and year first before 
 
 written. 
 
 E. Brooke, 
 
 Notary Public, Liveii)ool (c), 
 
 [Seal.] 
 
 Sliip Protest in consequence of a Loss hy Collision. 
 
 By the public instrument of jDrocess hereinafter contained or annexed hereto. 
 
 Be it known and made manifest unto all people, that on the day of 
 
 , in the year of our Lord one thousand eight hundred and , per- 
 
 sonally came and appeared before me, E. B., notary public, duly authorized, 
 admitted, and sworn, residing and practising in , in the county of , 
 
 in the United Kingdom of Great Britain and Ireland, and also a master extraordi- 
 nary of the High Coirrt of Chancery in England, A. B., master of the sloop or 
 vessel the Anne Mary, belonging to Liverpool, C. D. mate, and E. F. seaman of 
 the said vessel, who did, seA'erally, duly and solemnly declai'e and state as follows : 
 That is to say, that on the 1st day of February iiistant, about half-past tliree p.m., 
 these appearers, and the rest of the crew of the said vessel, set sail in her from 
 Livei-pool, bound on a voyage to Hatchett, near Bridgewater, laden idth a cargo of 
 hides, the said vessel being then tiglit, staunch, and strong, well manned, Adctualled, 
 and sound, and in e\"ery respect fit to perform her said intended voyage. And 
 these appearers, the said /I. i?. and £". i^., for themselves, declai-e and say, that 
 about half-past two a.m., on the 2nd of February, whilst the vessel was iJroceeding 
 on her said intended voyage, the other appeai-er, the said C. D., being beloAv in 
 bed, and the said vessel being between the Great Ormsheatl and Point Linus, tlie 
 wind bemg about east-south-east, with moderate weather and smooth ■^^■ater, the 
 vessel rumiing before the wind, and steering about west-north-west, under all sail. 
 
 (a) The words hi italics are sometimes Intro- and Practice of a Xotarv,'" bv Richard RrookCi 
 
 (luced, but they only tend to lengthen the instru- !^aun.ler^s and Bcnninc:, 1839, in ■which the reader 
 
 ment, and are not of any real use. will hnd much valuable information on the sub- 
 
 (h) Before the Act 6 & 6 "Will. 4. c. 62. ship jcct of protests, and also on all other mel-cnntilc 
 
 protests are usually swoni to by the appearers. instruments in the preparation of which the 
 
 ((•) This and the foUo-nnng protests are taken assistancee of a notary is useful or necessnryi 
 from the Appendix to a " Treatise on the Office
 
 PEOTEST BY SHIPPEES OF GOODS. 
 
 witli a squcare sail and half top-sail set ; and tins appearer, ^4. 1?., being tlien at 
 the helm, and this appearer, E. F., being forward, he called out that he saw a 
 light on the starboard bow ; and they at first thouglit that it was Point Linus 
 light, but it afterwards timied out to be the light of the steamer Vesuvius. That 
 this appearer, the said E. F., immediately went below for a light, and brought a 
 lantern on deck, and showed the light over the starboard bow ; and this appearer, 
 the said A. B., put the helm of the Anne Mary to the starboard until the course 
 was altered from west-north-west to south-west, in order to avoid the steamer. 
 That after so altering their course, this appearer, the said E. F., shifted the light 
 from the bow to abaft the rigging on the starboard side, to make it better seen by 
 the crew on board the steamer ; and both these appearers, the said A. B. and E. F.y 
 called out to the steamer to starboard her helm ; and about live minutes after the 
 light was shoAra, the steamer struck t\iQ Anne Mary, and she went down in a 
 niinute afterwards. And this appearer, the said C. D., for himself, declares and 
 says, that he was below in bed, and was awoke by the said A. B. calling out, 
 " Steamer ahoy !" and he immediately ran upon deck in his shirt and drawers, 
 and saw the appearer, the said E. F., holding a lantern on the starboard quarter ; 
 and this appearer, the said G. D., had not been a minute on deck before the steamer 
 struck the Anne Mary. And these appearers, the said A. B., C. D., and E. F., lor 
 themselves, declare and say, that immediately after the said G. D. came on deck,_ 
 the steamer struck the Anne Alary nearly amidships, and for the preservation of 
 their lives, these appearers, and another of the crew of the Anne Mary, jumped on 
 board the steamer, and arrived back at Liverpool in her on the 2nd day of Feb- 
 ruary ; and on the same day, this appearer, the said A. B., appeared at the office of 
 me, the said notary, and caused his protest to be duly noted. And these appearers 
 do protest, and I, the said notary, do also protest against the said steamer, and 
 the said collision, striking facts, and occurrences, and all loss or damage occasioned 
 thereby. 
 
 We, A. B.,G. D., and E. F., do solemnly and siaicerely declare, that the fore- 
 going statement is correct, and contains a tnre account of the facts and circum- 
 stances ; and we make this solemn declaration, conscientiously believing the same 
 to be true ; and by virtue of the i:)roAdsions of an Act made and passed in the sixth 
 year of the reign of his late Majesty, entitled "An Act to repeal an Act of the 
 present Session of Parliament, entitled ' An Act for the more elfectual abolition of 
 Oaths and Affii-mations taken and made in various Departments of the State, and 
 to substitute Declarations in lieu thereof, and for the more entire suppression of 
 voluntary and extra-judicial Oaths and Affidavits, and to make other Provisions 
 for the abolition of unnecessary Oaths.' " 
 
 .4.1?. 
 
 CD. 
 
 E. F. 
 
 Thus declared and protested, in due form of law, at the office of me, 
 the said notary, at , the day and year first before 
 
 written. 
 
 It. B., Notary Public, Liverpool. 
 [Seal.] 
 
 983 
 
 Protest hy Shi])pcrs of Goods against the Master and Owners of a Vessel, hi conse- 
 quence of the blaster's refusal, after notice, to sign a Bill of Lading in the 
 customary form. 
 
 By the public instrument of protest liereiaiafter contained or annexed hereto. 
 
 Be it kno^ni and made manifest unto all people, that on the day of 
 
 in the year of our Lord one thousand eight hundred and , personally 
 
 came and appeared before me, E. B., notary ])ublic, duly authorized, admitted, 
 and sAvorn, residing and practising in , in the county of , in the
 
 984 PROTEST BY SHIPPEES OP GOODS. 
 
 Unitecl Kingdom of Great Britain and Ireland, and also a master extraordinary 
 of the Higli Court of Chancery in England, G. G., one of the firm of G. G. and 
 Company, of Liverpool, merchants, the shippers of goods and merchandize per 
 ship or vessel the Frances, bound on a voyage from Liverpool for New York, in 
 the United States of America, and C. 1)., of Liverpool, clerk to the said G. G. and 
 Company, who did, severally, duly and solemnly declare ; and first, this appearer, 
 the said 6. D., for himself, did declare and state as follows : (that is to say), That 
 this appearer did attend for the said G. G. and Company, the shijjpers, and dicl 
 conduct the delivery on the day of instant, at and alongside of 
 
 the said vessel the Frances, of goods and merchandize mentioned in the duplicate 
 (or copy) bill of lading hereunto annexed. That E. F., the master of the said 
 ship or vessel, signed and gave a bill of lading for the seven chests of merchandize 
 therein mentioned, with the words " One chest in dispute ; if on board to be deli- 
 vered; contents unknown," written at the foot thereof; and that the said G. G. 
 and Company objected to the same ; and that this appearer, the said C. D., M-as 
 present, and did see the said seven chests of merchandize carefully delivered at 
 and alongside the said vessel, at LiverjDool aforesaid, in the usual manner, and 
 left under the charge of the mate and crew thereof. And that, on this 
 day of instant, this appearer, the said C. D., did deliver to the said 
 
 E. F. a notice and demand, signed by the said G. G. and Company, of which a 
 copy is hereunto annexed ; but the said E. F. refused to comj^ly therewith, or to 
 sign or deliver any other bill of lading in another form. 
 
 And the appearer, the said G. G., for and on behalf of himself and of his said 
 co-partner in trade, under the said firm of G. G. and Company, and for and on 
 behalf of all other persons who are, or shall or may be, interested in the said goods 
 and merchandize, doth declare and protest before me, and I, the said notary, at the 
 request of the said shippers, the said G. G. and Company, do protest against the 
 owners and the said ma-ter of the said vessel, for and in respect of the said refusal 
 and neglect to sign and give a correct bill of lading for the said goods, in the usual 
 and customary form, and for and in respect of all fall of markets, loss, damage, 
 costs, or expenses, which the said shippers, or any other person or persons, who is 
 or are, or shall or may be or become interested therein, have or hath incurred, or 
 may incur, by reason of the premises. 
 
 G. G. 
 
 CD. 
 
 Thus done, declared, and protested, in dtie form of law, at the office of me, the 
 said notary, at Liverpool, this day and year first before written. 
 
 E. B., Notary Piiblic, Liverpool. 
 
 [Seal.] 
 
 C&py of the Notice to the Master referred to in the foregoing Protest, objecting to the 
 Qualification introduced into the Bill of Lading vsithout consent, and demanding 
 a Bill of Lading in the customary form. 
 
 To Captain E. F., master of the ship or vessel called the Frances. 
 
 "We, the shippers of seven chests of merchandize, hereby give you notice, that 
 we object to the qualification or exception of " One chest in dispute ; if on board 
 to be delivered; contents unknown," added without our consent to the bill of 
 lading signed by you for the said goods, for New York, and that we hold you and 
 the owners of the vessel responsible for the value and safety of all and every goods 
 Avhich we shall prove to have been delivered at the said vessel ; and we demand 
 and require you forthwith to sign and deliver to us a bill of lading for the said
 
 i'EOTEST BY MASTER. 985 
 
 gootit!, in a usual, legal, and customary form ; and we give you notice, that in 
 default thereof, we shall protest against you, and we shall hold you and the owners 
 of the vessel responsible for all loss, damage, costs, or expenses, by reason of the 
 premises. 
 
 Liverpool, day of ,18 
 
 G. G. and Company, 
 
 Protest hij the. Master of a Vessel for Demurrage, pamblc under the Sti2}ulations of a 
 
 Charter-joarty. 
 
 By the public instrument of protest hereinafter contained or annexed hereto, 
 Be it known and made manifest unto all people, that on the day of , 
 
 in the year of our Lord one thousand eiglit hundred and , personally 
 
 came and appeared l)efore me, E. B., notary public, duly authorized, admitted and 
 sworn, residing and practising in Liverjiooi, in the county of , in the 
 
 L^nited Kingdom of Great Britain and Ireland, and also a master extraordinary of 
 the High Court of Chancery in England, G. D., master of the ship or vessel the 
 Sarah, belonging to the port of , who did duly and solemnly declare and 
 
 state as follows ; (that is to say,) That he, this appearer, as sucli master as afore- 
 said, did on or about the day of last, let the said ship to freight 
 to E. F., of ; and a charter-party of the said vessel for a voyage from 
 to Liverpool, and from thence back to was entered into on 
 the said day of last, and made between this appearer of the one 
 part, and the said E. F., of the other part, for the said voyage, whereby it was, 
 amongst other stipulations, engaged and agreed [here state the number of days 
 allowed for 'unloading andj reloading, and the amount per day to he paid for demur- 
 rage, as mentioned, in the charter-farty.'] That this appearer, j)ursuant to the said 
 charter-part)", did receive on board the said vessel at .aforesaid, a cargo 
 of lawful goods, provided and shipped by the agents of the said E. F. there, 
 and from thence proceeded therewith on board the said vessel direct to Liverpool 
 aforesaid, where she arrived on the day of instant, and on tlie 
 instant, when the said vessel had been reported, liad got into a proper 
 berth for discharging, this appearer gave notice to G. H. and Company, the agents 
 at Liverpool of the said E. F., and to which agents the cargo was addressed, that 
 this appearer was ready to deliver the said cargo of goods ; and that the agents of 
 the said freighter caused the discharge of the said cargo of goods to be commenced, 
 and they received and took the same from the said vessel, and then 2>roceeded to 
 put on board the said vessel another cargo of goods for her voyage back to 
 aforesaid ; but that the agents of the said freigliter did not complete the loading 
 thereof until the day of instant, being days beyond the 
 time hereinbefore mentionecl and allowed in and by the said charter-party to the 
 said freighter or his agents for discharging and reloading tlie said vessel at Liver- 
 pool, as aforesaid, whereby the said freighter hath become liable to pay demurrage 
 for such delay or detenticn, pursuant to the said charter-party, for days, 
 at and after the rate of per day, amounting to the sum of 
 sterling, and which sum, or any part thereof, the said agents of the said freighter 
 have refused to pay. Wherefore, the said appearer, A. B., on behalf of the owners 
 of the said vessel, and on behalf of himself as master, doth protest ; and I, the said 
 notary, at his request, do also protest against the said freighter, E. F., and against 
 his agents, the said G. H. and Company, and against all and every other person or 
 persons whomsoever responsible or liable, or whom these presents do, sliall, or may 
 concern, and holding him and them responsible and liable ibr tlie breach of the 
 said charter-party, and for all demurrage, damage, injury, loss, wages, costs, and 
 expenses incurred, owing, or sustained, or to be incurred or sustained, by reason of 
 the said breach, delay, detention, or other premises. 
 Thus done, declared, and protested, &c. 
 
 E, B., Notary Public, Liverpool. 
 [Seal.]
 
 986 FOEM OF AVEBAGE AGEEEMEXT. 
 
 Protcd hij the Master of a Vessel cujainst tlie Consignees of Goods for not tahimj and 
 d.ucharfjinrj them from the Vessel in a reasonable time. 
 
 By the public instrument of protest hereinafter contained or annexed hereto, 
 Be it kno-wn and made manifest unto all people, that on the day of 
 
 in the year of our Lord one thousand eight hundred and , per- 
 
 sonally came and appeared before me, R. B., notary iJubUc, duly authorized, 
 admitted, and sworn, residing and practising in Liverj^ool, in the county of Lan- 
 caster, in the L'nited Kingdom of Great Britain and Ireland, and also a master 
 extraordinary of the High Court of Chancer}- in England, A. B., master of the 
 sliip or vessel the Lines, belonging to the port of , ■\vho did duly and 
 
 solenmly declare and state as follows ; (that is to say), That this appearer did, on 
 or about the day of last, receive on board the said vessel at the port 
 
 of Dantzig, in the kingdom of Prussia [here describe the goods'], all of which Avere 
 sliipped on board her tliere l)y ^Messrs. B. tO L., addressed to C. B., at Liverpool 
 aforesaid ; and this appearer duly signed bills of lading as customary, expressing 
 the said goods to be deliverable to the said C. D., at Liverpool, he or they paying 
 the freight for the same, with primage accustomed. That this appearer proceeded 
 Avith the said goods on board the said vessel direct to Liverpool aforesaid, where 
 she arrived on the day of instant, and on the day of 
 
 instant, when the said vessel had been reported, and had got into a 
 proper berth for discharging, this appearer gave notice to the said C />., to Avhom 
 tlie said goods were addi-essed, that this appearer was ready to deliver the said 
 goods, but from that time up to the date and making of these presents, neither the 
 said C. D., nor any other person on his behalf, hath received or discharged, or 
 ofl'ered to receive or discharge, the said goods from the said A"essel, or paid or offered 
 to pay the freight and prunage tliereof, although this appearer is willing and desi- 
 rous to deliver the said goods ; and notwithstiuiding this ajjpearer hatli several 
 times applied to, and requested the said C D. to have the said goods discharged 
 from the said vessel, and received by hun, yet he still delays and neglects so to do ; 
 and that such delay and neglect are unreasonable and injurious to the interests of 
 the owners and master of the said vessel. 
 
 '\Mierefore, the said appearer, A. B., on behalf of the o-miers of the said vessel, 
 and on behalf of himself as master, doth protest, and I, the said notarj-, at his 
 request, do also jirotest against the said C. D., and against all and every other 
 person or persons whomsoever responsible or liable, or whom these presents do, 
 shall, or may concern, and lioldijig him or tliem responsible and liable for all 
 demiu'rage, damage, injiuy, loss, wages, costs, and expenses incuiTed, owing or 
 sustained, or to be incru-red or sustained, by reason of the said unreasonable delay, 
 detention, or other the premises. 
 
 Thus done, declared, and protested, in due fonn of law, at the office of me the 
 said notary, at Liverpool, the day and year first before Avritten. 
 
 U. B., Notarv Public, Liverpool. 
 [Seal.] 
 
 Average Agreement. 
 
 AimcLfis OF Agr£emext entered into this day of in the ye;u- 
 
 one thousand eight hundred and between A. B., master of the ship or 
 
 vessel the Anna Boleyn, belonging to of the one part, and the several 
 
 pei-sons whose names are hereunto subscribed of the other part : 
 
 AMiereas the said ship or vessel Anna Boleyn having, on the day of 
 
 last, sailed from liound on a voyage from thence to 
 
 laden Avith a cargo of and liaAing, on or about the day of 
 
 foUoAAing, encountered stormy and tempestuous Aveather, tlie said tessel labouring
 
 PORM OF AVERAGE AGREEMENT. 987 
 
 very liani and driving fast on sliore, the crew were obliged, for the safety of the 
 vessel and cargo, to [here must he recited, dcarlij and carefully, the facts and, 
 occurrences which gave rise to the (jeneral average, in order to slioiv that the sacrifice 
 and. expenses v:ere for the benefit of all concerned, and that the parties are liable, in 
 point of lav.\ to contribute, pro rata to the general average;] whereby or by means 
 whereof considerable loss has been sustained, and considerable expenses, disburse- 
 ments, and charges have been incurred, the amount whereof cannot at present be 
 sufficiently ascertained, and which may form a charge on the vessel, freight, and 
 the goods laden on board, or may come under the denomination of a general 
 average, to which the said parties of the second part, being respectively owners or 
 consignees, or agents of owners or consignees of the goods laden on board thereof, 
 may be liable to contribute. 
 
 Now these articles witness, that in consideration of the engagements and agree- 
 ments of the said parties of the second part, hereinafter contained, the said A. B., 
 for himself individually, and also for the owners of the said vessel, engages and 
 agrees with each of the said parties of the second part, that he the said A. B., or 
 the said owners, shall and will deliver or cause to be delivered, as soon as can be 
 conveniently done, at the port of aforesaid, and on reasonable request, 
 
 the respective goods, Avares, and merchandize, so laden on board the said vessel 
 belonging or consigned respectively unto the several parties of the second part, his 
 or theu' factors, agents, or assigns, and permit them to receive, take possession 
 and remove the same, according to their resjiective rights, positions, or OAvner- 
 ships thereof, (the damages or casualties of the seas and navigation, restraints 
 of princes and rulers, tires, pirates, enemies, or other inevitable accident not 
 preventing). In consideration whereof the said parties of the second part do 
 hereby for themselves, severally and respectively, and not jointly, personally 
 engage and agree -witli the said master A. B., individually, and also with the 
 owners of the said vessel, to pay or cause to be paid, unto the said A. B., or 
 as may be requii-ed, unto the owners of the said vessel or their agents, the 
 proper and respective proportions of the said general average loss and expenses, in 
 respect of theii- respective goods, and all legal charges, salvage, and other expenses 
 to which they are or shall be respectively liable, or whicli the cargo ought to 
 bear under the aforesaid circumstances, rateably, and in fair- proportions ; and for 
 the better computing the same, they do hereby further agree to refer the amoimt 
 and proportion thereof, to be ascertained and adjusted by C. B., of afore- 
 
 said, insiu'ance broker, and whose decision in the premises they do hereby engage 
 to abide by and perform. "Witness the hands of the i)arties, the day and year 
 tirst before Avxitten.
 
 IIsTDEIX: 
 
 TO 
 
 THE PEINCIPAL MATTEES. 
 
 PAGE 
 
 ABANDONMENT 
 
 registry of abandoned ships 53, 893 
 
 of goods thrown overboard does not divest the property in them ; 
 goods may be chaimed by owner, subject to salvage, notwith- 
 standing 
 
 of ship to insurers ... 
 
 of seamen abroad, provisions against 
 
 of certain seamen in this country 
 
 of damaged goods for freight 
 
 of voyage, effect of on wages of seamen 
 
 ABSENCE 
 
 of mariner from the ship without leave , 
 
 when it amounts to desertion 
 
 occasioned by restraint of foreign powers 
 
 ACCIDENTS 
 
 to steam vessels to be reported to Board of Trade 
 
 safety and prevention of, provisions in M. S. Act, 1854, as to. 
 
 inquiries into 
 
 ACCOMMODATION 
 
 what, to be provided for seamen — See Seamen 
 
 for passengers 
 
 ACCOVi^^T^— See Part-oivners. 
 
 of voyage between part-owners 68 
 
 of crews 697,93-4,943,968 
 
 of changes in ... ... ... ... ... ... ... 668,961 
 
 of crew, transmission of, to a superintendent of a mercantile marine 
 
 office 146 
 
 of wages, form of , 964 
 
 of voyages of home trade ships, form of 972 
 
 ACIDS— See Lime Juice. 
 
 ACTIONS 
 
 by part-owners — ^e& Part-oimers 69 
 
 against them ... ... ... ... ... ... ... ... 69 
 
 on bottomry bonds ... ... ... ... ... ... ... 115 
 
 general average 528 
 
 •i?i rwi in Admiralty Court vi, 845 
 
 in County Courts — See Gouniy Courts 886 
 
 ACTS OF GOD 
 
 meaning of . . . ... ... ... ... ... ... ... ... 327 
 
 ship-owner not liable for 327 
 
 
 526 
 
 • .• 
 
 9 
 
 145, 
 
 679 
 
 
 795 
 
 • . * 
 
 363 
 
 47, 
 
 464 
 
 134, 
 
 689 
 
 132, 
 
 924 
 
 ... 
 
 478 
 
 
 703 
 
 
 702 
 
 635^ 
 
 730 
 
 144, 
 
 878 
 
 807, 
 
 808
 
 IXDEX. 
 
 PAGE 
 
 ADJUSTMENT 
 
 oi genemcil avevage— 'Bee Average, Oeneml 530 
 
 ADMIRALTY COURT— See Vice Admiralty Courts, Count]) Courts. 
 
 part of supreme court ... ... ... ... ... ... ... A'ii 
 
 11 division of liigli court of justice -whicli in this work is referred to us 
 
 the Court of Admiralty vii 
 
 jurisdiction of ... ... ••• ••• ••• •■• ••• ••• v 
 
 3 & 4 Vict. c. 65 Act extending jurisdiction of 617 
 
 24 Vict. c. 10 842 
 
 in suits for possession of ship 4,618, 842 
 
 on transmission of vessel to imqualilied owner 845 
 
 over mortgages .")(), 618, 843 
 
 in disputes between part-owners 59 
 
 for necessaries supplied to sliip ... ... ... ... ... 842 
 
 to foreign ship 103 
 
 to ship elsewhere than in port to whicli she belongs ... 104 
 
 for building, ecj^uipping, or repairing of ships 99, 102, 842 
 
 bottomry bonds 115 
 
 in actions for wages &c 674, 843 
 
 in salvage cases 539, 559, 738, 843 
 
 appeal to from justices and cin([ue ports 618 
 
 in Scotland 753 
 
 in collision cases ... ... ... ... ... 578,751, 842 
 
 Avhere damage to cargo imported ... ... ... ... ... 842 
 
 as to limitation of liability of shipowners 842 
 
 in prize cases vi, 16, 19 
 
 over (J uestioiis relating to booty of war ... ... ... ... 620 
 
 over crimes committed on the high seas, &L' 694 
 
 in territorial waters 919 
 
 other provisions as to jurisdiction of Si'i ct seq. 
 
 registrar of 845 
 
 sentence of foreign court when conclusive viii, 17 
 
 ADMIRALTY COURT ACT, 1861 842 
 
 ADMISSION 
 
 by part-owner when binding on co-owner 62 
 
 ADULT 
 
 " statute," within Passenger Act, who 803 
 
 ADVANCE NOTES 474,670,922 
 
 illegal if conditional on going to sea 922 
 
 ADVANCE OF WAGES— See Allotment—Seamen. 
 
 AFFREIGHTMENT 
 
 contract of — See Charter-Party — Bill of Lading. 
 
 AGREEMENT— See Seamen. 
 
 for building a ship ... ... ... ... ... ... ... ... 2 
 
 form of, witli crew 934 
 
 office copy of same for transmission to registrar-general of shipping 
 
 and seamen ... ... ... ... ... ... ... 942 
 
 half-yearly, witli crew for home trade ships 946 
 
 witli crew, form of copy of, accessible to tlie crew 954 
 
 AIR 
 
 supply of, in passenger ships 80S 
 
 ALIENS 
 
 cannot hold British ships ... 41
 
 INDEX. 
 
 I'AGE 
 
 ALLIES 
 
 salvage on the capture of the property of 569 
 
 ALLOTMENT NOTES 474, GTO, 922 
 
 furni of 962 
 
 ANCHOR— See Marine Stores. 
 
 for passenger ships 810 
 
 ship to be seaworthy must be provided with proper 281 
 
 liabilities for injuries done by sunken, of persons to wlioni it belongs 593 
 to be marked by manufacturers 740 
 
 ANCHORING 
 
 where drift net fishing 590 
 
 APPAREL OF SHIP 
 
 whether part of it 3 
 
 APPEAL 
 
 on refusal of certain certificates to ships 903 
 
 when investigation into shipping casualty 920 
 
 APPORTIONMENT 
 
 of salvage reward 551, 563 
 
 APPRENTICES 
 
 to the sea service 664 
 
 who to assist in binding apprentices, and to receive fees 664 
 
 indentures of boys bound apprentices to sea service by guardians or 
 
 overseers, to be witnessed by two justices 664 
 
 indentures of apprenticeship to be exempt from stamp duty and 
 
 recorded 664 
 
 rules to govern apprenticeships of paupers in Great Britain and Ireland 
 
 respectively ... ... ... ... ... ... ... ... G64 
 
 on ship's arrival at foreign port, indentures to be left with consular 
 
 officer ... ... ... , ... ... ... ... (399 
 
 offehces of ... ... ... ... ... ... ... ... ... (J89 
 
 jjower of court to rescind contract of apprenticeship 923 
 
 they and their indentures to be brought before mercantile marine 
 
 officer before each voyage in a foreign-going ship 665 
 
 APPURTENANCES 
 
 of ship, what included in 3 
 
 fishing stores and whalers' chronometers 341 
 
 ARREST — See Admiralty Court. 
 
 of ship by part-owner 60 
 
 in cases of collision ... ... ... ... ... ... ... 577 
 
 in suit for collision, of foreign ship occasioning damage ... 579, 751 
 of ship to enforce bottomry seciirity ... ... ... ... ...115 
 
 by master on board ship 125 
 
 ARTICLES 
 
 sliips, with crew — ^ee Seamen 452,942 
 
 ASSAULT 
 
 by seamen on officers 689 
 
 ASSIGNMENT 
 
 of bill of lading — 8ee Bill of Lading 274 
 
 by a factor as a pledge ... ... ... ... ... 427, 432 
 
 efect of, on stoppage i» ^mHs/^H ... ... ... ... 416,426
 
 INDEX. 
 
 AsSIfiNMEXT—'CO/i^/H !(£(?. PAGE 
 
 of wages by seamen ... ... ... ... ... ... ... 686 
 
 of indenture of apprerticedui> 664,699 
 
 AUTHOEITY 
 
 of master over crew 
 
 over passengers 
 
 AVERAGE 
 
 petty charges clue by usage 
 
 tliey tu'e generally commuted 
 jiarticular ... 
 
 AVERAGE, GENERAL 
 
 of the Lex Rhodia de Jactu, and|the regulations of foreign ordinances 
 
 respecting jettison 
 of tlie losses for which contribution by general average shall be made 
 there must be common dauger and intentional sacrifice 
 
 corrollaries deduced from Rhodian law ... 
 
 part of goods given as ransom 
 
 to jettison of what goods rule extends 
 
 stranding of ship 
 
 exception in bill of lading 
 
 of ship's expenses in jwrt of refuge 
 
 of goods sold for the necessities of ship and cargo 
 
 of expenses in wages and maintenance of crew during the detention 
 
 of a ship by order of a sovereign power 
 of expenses in wages and maintenance of crew wiiile the shijj is waiting 
 
 for convoy 
 of the expense of healing mariners wounded in defence of the ship . . . 
 of loss by collision ... 
 
 of the jettison of goods stowed on the deck of the ship 
 
 remarks 
 
 what articles to contribute 
 
 of the mode of contribution 
 
 action for ... 
 
 lien for 
 
 agreement respecting, form of 
 
 how settled and recovered in case of dispute 
 
 cases on policies of insurance 
 
 action for negligence against average adjuster ... 
 
 124 
 161 
 
 345 
 345 
 
 497 
 
 497 
 
 497 
 503 
 503 
 505 
 505 
 505 
 507 
 507 
 508 
 516 
 
 517 
 
 518 
 518 
 520 
 
 , 520 
 524 
 
 , 527 
 528 
 
 528h 
 
 528/i 
 986 
 530 
 534 
 
 , 535 
 
 B. 
 
 BALLAST 
 
 held not to be/«/')u7Hrc ... 
 shipowners bound to find for ship 
 merchandise may be carried as ... 
 
 Avhat articles may not, in passenger ships . 
 
 BALLASTAGE 
 
 rate3, application of 
 
 establishments for, how to be charged ... 
 
 BANKRUPTCY 
 
 transmission of property in ship by 
 declaration of ownership on transmission l\v , 
 
 4 
 196 
 
 4 
 810 
 
 728 
 
 728 
 
 48, 647
 
 INDEX. 
 
 Bajtkruptct — continued. page 
 
 of mortgagee ... ... ... ... ... ... 649 
 
 of mortgagor 649, 050 
 
 of one part-owner 64 
 
 BARGE— See Lighter. 
 
 BARRATRY 
 
 definition of ... ... ... ... ... ... ... ... 137 
 
 not so comjjreliensive in France ... 137 
 
 not essential that act sliould be done by master for liis own benefit, or 
 
 with intent to injure liis owners ... ... ... ... ... 137 
 
 against whom and by whom, may be committed ... ... ... 138 
 
 offences punishable by statute 138 
 
 rimning away with the ship 1 39 
 
 voluntarily yielding to pirates 139 
 
 not resisting pirates 139 
 
 BEACONS 
 
 penalty for damaging 726 
 
 BERTHS 
 
 of seamen, allowance for 144, 684 
 
 in passenger sliips 807, 808 
 
 BILL OF EXCHANGE 
 
 taken by seamen for wages ... ... ... ... ... 490?i 
 
 shipowner taking from consignee for freight, Avhen confined to his 
 
 remedy upon 356 
 
 BILL OF HEALTH 296n 
 
 BILL OF LADING 
 
 what it is 256 
 
 by what law construed 256 
 
 for goods shipped under charter-party 214 
 
 stamp on 257 
 
 sometimes two, sometimes three parts of 257 
 
 old form of 257 
 
 new form of 258 
 
 description of goods in 278 
 
 should not contain incorrect statements 259 
 
 when conclusive evidence of shipment 260 
 
 ■warranties in ... ... ... ... ... ... ... ... 259 
 
 exceptions in ... ... ... ... ... ... ... 258, 261 
 
 special clauses in for demurrage, &c 241,354 
 
 reference in, to charter party 259 
 
 to whom master and owners responsible on 261 
 
 assignment of — ^.. ... ... ... ... ... ... ... 274 
 
 effect of, on stoppage wi irtmsiiw 416,426 
 
 endorsements of 275, 420 
 
 enactment as to transferring rights of suit 275, 801 
 
 cases of conditional consignment... ... ... ... ... ... 270 
 
 endorsement and transmission of, as security for antecedent advances, 
 
 or to indemnify against acceptances ... ... ... ... 271 
 
 when consignor cannot vary destination of consignment . . . 263, ct seq. 
 where consignee is only agent ... ... ... ... ... ... 272 
 
 goods sent during Avar to an enemies country ... ... ... ... 279 
 
 implied contract to pay freight by receiver of goods under ... ... 357 
 
 remarks on cases ... ... ... ... ... ... 277 
 
 Factors' Acts 426,614 
 
 pledge of, by factor 427-435, 614 
 
 3 s
 
 INDEX. 
 
 Bill of L\m:sG— continued o- .^1?- 
 
 to whom master should deliver goods ... ... ... -Oi , ^ < 4, 4_.) 
 
 what amounts to a delivery pursuant to lull ol lading ... •^-- 
 
 inaster should in prudence insist on all parts of, bemg returned to him ^ 
 
 before he allows goods to be unshipped at port of loading ... 4oU 
 what, evidence of, in hands of consignee 803 
 
 BILLS OF LADING ACT 
 
 18 & 19 Vict. c. Ill 275,801 
 
 BILL OF SALE— See British Sliips. 
 
 ships or shares thereof must be transferred by 2, 47 
 
 of .ship, form of • "6° 
 
 what passes by ^ 
 
 exempt from stamp, when o^4 
 
 recital in, of certificate of registry not required ... 48 
 
 must be produced to the registrar of port where sliip registered... 48 
 
 vegistvy oi~S(te British Ship— Begistrij 42 
 
 whose duty to register 49 
 
 BIRTHS 
 
 registration of ^^^''* 
 
 ... 441 
 
 BLOCKADE— See Dissolution of Contracts. 
 
 of port of departure 
 
 destination 442 
 
 BOARD OF TRADE 
 
 meaning of • ■ • • • • • • • ^2ii 
 
 how to be described 727i 
 
 its general functions in relation to the mercantile marine ... 72, 634 
 
 local marine boards 74 
 
 duties of mercantile marine offices established under its authority ... 75 
 
 provisions in M. S. A., 1854, as to 634 
 
 certain certificates. &c., of, to be received in evidence 634 
 
 to issue forms 634 
 
 certain forms, &c., exempt from stamp duty 634 
 
 forgery of forms, &c 634 
 
 application of fines 634 
 
 returns to ... ... ... ... ••• ... ... ••. ... 635 
 
 inspection of documents, &c., by 635 
 
 appointment of inspectors by 635 
 
 powers of such inspectors 6.35, 636 
 
 legal procedure by ... ... ^ 860 
 
 may sue in name of its officers ... ... ... ... ... 896 
 
 transfer to, of duty to measure ships 889 
 
 of duties of emigration commi.ssioners ... ... ... ... 890 
 
 of certain duties under " Passengers Act, 1863 " 890 
 
 BOATS 
 
 ship's, no part of ship or of her apparel 3 
 
 what, need not be registered 41 
 
 to what boats third part of M. S. Act, 1854, applies 55 
 
 for sea going ships .. . ... ... ... ... ... ... 702, 787 
 
 painting name on 55 
 
 for passenger ships 808 
 
 inspection of, on passenger steamers 704 
 
 pilot 713 
 
 life, expenses of ... 794 
 
 Board of Trade may vary requirements as to ^94
 
 INDEX. 
 
 BOND PACK 
 
 bottomry — See Bottom nj 976 
 
 for payment of average 533 
 
 salvage 792 
 
 to be given by master, &c., of passenger ship 834 
 
 passage brokers 835 
 
 respondentia, iovm. oi ' 978 
 
 BOOTY OF WAR 
 
 admiralty jurisdiction in questions relating to 620 
 
 BOTTOMRY— See Maritime Liev. 
 
 by whom and to whom 110 
 
 by owners 106 
 
 by master 9ln, 104, 110 
 
 should communicate with his owners before hypothecation when 
 
 practicable ... ... ... ... ... ... ... 108 
 
 in foreign covmtry ... ... ... ... ... ... ... 109 
 
 at residence of owTiers ... ... ... ... ... ... 107 
 
 when ship under arrest ... ... ... ... ... ... 115 
 
 must be for shi^js necessities 113 
 
 not for master's own debt ... ... ... ... ... ... 113 
 
 as to lender seeing to application of money 114 
 
 advance must be on credit of ship 113 
 
 form of security 111,976,977,979 
 
 liability of lender to sea risk should appear ... ... ...Ill 
 
 may be good in part and bad in part ... ... ... ... 113 
 
 nature and effect of 104, 106 
 
 sea risk must be incurred 109 
 
 what is a total loss 105 
 
 owners not personally liable 113 
 
 proceedings in admiralty on security ... ... ... ... ... 115 
 
 arresting ship ... ... ... ... ... ... 115 
 
 marshalling assets ... ... 119 
 
 priority where several securities ... ... ... ... ...117 
 
 last entitled to priority ... ... ... ... ... ... 117 
 
 pledging freight and cargo ... ... ... ... ... ...118 
 
 freight 118 
 
 cargo 120, 121 
 
 receipt of freight by obligee of bond, is recoil^ by shipowner 400 
 
 respondentia 106, 121, 978 
 
 BRITISH SEAMEN 
 
 description of 81 
 
 BRITISH SHIPS 
 
 description and ownership of 
 
 number of joint owners 
 
 must with certain exceptions be registered 
 
 naming of, rules as to — Sec Naiaes of Shi2)s 
 
 what must be marked on 
 
 measurement of tonnage 
 
 allowance for engine-room ... 
 
 open ships, how measured 
 
 tomiage when once ascertained to be afterwards 
 tonnage ... 
 
 re-measurement 
 
 officers for, and regulations as to 
 
 transfer to Board of Trade of duties as to 
 
 registry of . . . 
 
 who to be registrars ... 
 in colonies 
 
 H s2 
 
 
 ... 38 
 
 
 41, 636 
 
 
 ... 925 
 
 
 41. 637 
 
 
 887, 893 
 
 
 ... 892 
 
 
 42, 637 
 
 
 ... 640 
 
 
 ... 640 
 
 deemed the 
 
 
 ... 641 
 
 
 641, 799 
 
 
 641, 891 
 
 
 ... 889 
 
 ' 42 
 
 637, 889 
 
 
 ... 641 
 
 
 ... 835
 
 INDEX. 
 
 British Ships— fo?}<2'?iw«?. page 
 
 registry of — contimi^J. 
 
 wiio to be registi-ars in forei.Ljn ports S96 
 
 wlio to act in place of commissioners of customs abroad 642 
 
 register books to be kept 642 
 
 port of registiy ... ... ... ... ... • • • • ■ • • • • ^42 
 
 by wliom registry to be made ... ... ... ... ... • • • 642 
 
 survey of sliip *• 642 
 
 rales as to entities in registry book 642, 799 
 
 declarations of o-nnersbip 643 
 
 penalty' for false declarations T99 
 
 name of managing owner to be registered ... ... ... ...913 
 
 evidence to be produced on registry ... ... ... ... ... 643 
 
 penalty- on builder for false certificate 644, 766 
 
 what registrar to enter in register book ... ... ... ... ... 644 
 
 no notice taken of trusts ... 644 
 
 transfer to registrar-general of sliipping and seamen of duties with 
 
 respect to ... 889 
 
 transcript of register for transmission to registrar-general of shipping 
 
 and seamen ... ... ... ... ... ... ... ... 931 
 
 certificate of registry of 46, 644 
 
 change of owners to be endorsed 644 
 
 master to be endoi-sed 645 
 
 power to giant new 645 
 
 provision in case of loss of . . . ... ... ... ... ... 645 
 
 provisional certificate ... ... ... ... ... ... 645 
 
 custody of 645 
 
 delivery of, may be required 645 
 
 penalty for using improper ... ... ... ... ... ... 646 
 
 what to be done with, when ship lost or ceases to be British ... 646 
 provisional cei-tificate where ship vested in British owners at 
 
 foreign port ... ... ... ... ... ... ... 646 
 
 provisional certificate in colonies 884 
 
 deUverj- of, upon transfer of registry from one port to another ... 799 
 registry anew, and transfer of registry — 
 
 when ship altered 52, 652 
 
 on change of ownership 53, 653 
 
 of abandoned ships 53, S93 
 
 ship's register may be transferred fiom one port to another 53, 653, 799 
 
 transfer of registry not to afiect rights of owners 653 
 
 copy of transaction subsequent to registry for transiiussion to regis- 
 
 ti-ar-general of shipping and seamen 933 
 
 registry, miscellaneous — 
 
 inspection of register books 53,653 
 
 application of fees 53, 654 
 
 fomLS 654 
 
 indemnities and duties of registrars in exceptional cases ... 53, 654 
 
 provision for cases of infancy and incapacity 53, 654 
 
 grant of passes, in special cii-cmnstances, for unregistered ships 53, 654 
 liability to penalties of unregistered persons interested, not being 
 
 mortgagees 53 
 
 rectifying register 46 
 
 as to copy of register being evidence 799 
 
 forgery 654-56 
 
 transfers and transmissions of 653 
 
 of ships or shares therein 2,47, 646 
 
 form of. 768 
 
 declaration to be made by transferee ... .,. ... 48,647 
 
 registration of. ' 48, 647 
 
 transmission of shares by death, bankruptcy, or ir; irriage 4S, 647 
 proof of transmission by bankruptcv, mai'iiage, will," or on in- 
 testacy .' 647
 
 INDEX. 
 
 British Ships — continued. page 
 
 transfer and transmission of — continued. 
 
 registration of transmitted share 48, 647 
 
 registrar to retain certain evidence 648 
 
 unqualified owner entitled by transmission may apply to court for 
 
 sale of ship ... \ 48, 648 
 
 order to be made by coiirt 648 
 
 limit of time for application 648 
 
 power of courts to prohibit transfers ... ... ... 49, 648 
 
 by way of security — See Mortgage ... ... ... ... ... 49 
 
 sale of ship by master 5 
 
 by part owner, . . ... ... ... ... 62?;. 
 
 mortgage of 49, 648 
 
 form of 49, 648 
 
 registry of 49, 649 
 
 entry of discharge of 50, 649 
 
 priority of 49, 649 
 
 mortgagee not to be deemed owner 23,49, 649 
 
 to have power of sale ... ... ... ... ... 24, 649 
 
 rights of, not affected by act of bankruptcy of mortgagor ... 649 
 
 transfer of 
 
 transmission of interest of mortgagee by death, &c. 
 
 entry of transmitted mortgage 
 
 certificates of mortgage 
 
 power of Court of Admii-alty over 
 
 certificates of mortgage and sale ... 
 
 when to be granted ... ... ... 
 
 by whom 
 
 powers of mortgage and sale may be conferred by 
 
 requisites for . . . ... ... ... 
 
 restrictions on 
 
 forms of 
 
 rules as to certihcates of mortgage 
 
 of sale 
 
 loss of 
 
 revocation of . . . 
 
 changes to be noticed on 
 
 when new one granted 
 
 how to be used 
 
 provisional at foreign port ... 
 national character of 
 
 to be declared before clearance 
 
 unduly assuming 
 
 penalty for carrying improper colours 
 
 effect of declaration in the Act that ship should not be recognised as a 
 
 British ship ; 656 
 
 evidence of title to 55,656 
 
 copies of registers and declarations 55,656 
 
 BEOKER— See Passage Brokers. 
 
 passage, regulations respecting 822 
 
 BUILDING OF SHIP 
 
 title by 1 
 
 BULLION 
 
 contributes to general average ... -.. ..• ... 527 
 
 BUOYS— See Passenger Shiios— Passenger Steamships. 
 
 penalty for damaging '26 
 
 life, for passenger ships 810 
 
 50, 
 
 649 
 
 . 
 
 649 
 
 
 649 
 
 '. 650- 
 
 -652 
 
 50, 
 
 618 
 
 . 46, 
 
 650 
 
 . 46, 
 
 650 
 
 . 46, 
 
 644 
 
 
 650 
 
 . 
 
 650 
 
 
 650 
 
 46, 650, 
 
 782 
 
 
 650 
 
 
 651 
 
 ' 47', 
 
 652 
 
 . 652, 
 
 784 
 
 .. 46, 
 
 644 
 
 . 46, 
 
 645 
 
 . 46, 
 
 646 
 
 . 47, 
 
 646 
 
 
 655 
 
 
 655 
 
 
 655 
 
 '.'. 296, 
 
 656
 
 L\DEX. 
 
 i'AGE 
 
 BUIUAL 
 
 of seamen ... ... ... ... ... ... ... ... ... 685 
 
 BURNING 
 
 a ship, liow piuiisliublc 138 
 
 BYE-LAAVS 
 
 for regulation of pilots. — See Pilots. 
 
 c. 
 
 CABIN PASSENGER 
 
 authority of master over 161 
 
 provisions respecting 168,169,805,817 
 
 CABLES — See Salvage — Marine Stores. 
 
 punishment for causing them to be cut Mitliuut permit 740 
 
 CANADA 
 
 one British possession for purpose of M. S. Act 885 
 
 CAPTURE 
 
 property ot ships, how acquired by ,.. 16 
 
 Avhen property in ships devested by 17 
 
 prize courts... 17», 19 
 
 effect of judgment of foreign Court of Admiralty 17 
 
 condemnation in neutral port 18 
 
 wages of seamen, in case of ... ... ... ... ... ... 478 
 
 salvage upon recajaturo ... ... ... ... ... ... ... 567 
 
 capture by pirates .. . ... ... ... ... ... ... ... 19 
 
 ransoming prizes ... ... ... ... ... ... 20 
 
 CAPTURED GOODS 
 
 freight of 347,398 
 
 CAPTURED SHIPS 
 
 registry of 644 
 
 CARGO — See Bill of Lading — Freight — Stoppage in transitu. 
 
 agreement in charter-party as to loading 183,184,189 
 
 dangerous goods 287,895,896 
 
 damages for not loading ... ... ... ... ... ... ... 196 
 
 master's duty as to loading 285,900 
 
 grain cargoes ... ... ... ... ... ... 908 
 
 deck cargoes ... ... ... ... ... ... ... 906,927 
 
 master's duty as to, in course of voyage ... ... ... ... ... 310 
 
 as to unloading ... ... ... ... ... ... ... 318 
 
 Customs Act, as to .. . ... ... ... ... ... ... 287,318 
 
 sale of, before arrival ... ... ... ... ... ;.. ... 416 
 
 Avho to sue for loss of or injury to ... ... ... ... ... 261 
 
 Admiralty jurisdiction where damage done to cargo imported ... 842 
 
 jurisdiction of county courts for damage done to ... ... 880, 886 
 
 consignee deemed owner, unless contraiy ajipears ... ... ... 274 
 
 trans-shipment of ... ... ... ... ... ... ... ... 313 
 
 hypothecation and sale of, by the master ... ... 120, 121, 311 
 
 general average on account of sale of, when admissible 516 
 
 delivery of ... ... ... ... ... ... ... ... ... 321 
 
 power to shipowner to enter and land in default of entry anil landing 
 
 by owner of goodrt ' 861 
 
 lieu on, for freight, &c 216,861
 
 INDEX. 
 
 tliouii'h nut detained for 
 
 Cargo — continued. 
 
 merchant charterer answerable for freight of 
 
 freight by master 
 detainer of, for salvage 
 in passenger ships 
 
 CAKRIER 
 
 when shipowner liable as a common currier 
 
 CASAREGIS 
 
 CASUALTIES— See Wrech 
 
 CERTIFICATE— See British Ship— Master— Mates— Pilotage. 
 of survey of ship ... 
 
 passenger steamers 
 
 of competency, &c. , of master and mates 
 
 cancelling and suspending same 
 in colonies, to masters and mates ... 
 for passenger steamers — See Passenger Steamers. 
 appeal on refusal of certain certificates to , 
 of superintendent of mercantile marine office that ship 
 
 produced to him 
 of discharge of seamen 
 
 Cr.RTIFICATE OF MORTGAGE AND SALE 
 
 revocation of 
 CERTIFICATE OF REGISTRY -See British Ship 
 
 provisional, in colonies ... 
 
 CESSER CLAUSE 
 
 as to liability on charter-party ... 
 
 CHANNEL ISLANDS 
 
 ship going to, from U. K., not a foreign-going ship 
 
 registration of ship in 
 
 dues in 
 
 Customs Act as to ... 
 
 CHARTERER OF SHIP 
 
 when to be considered as owner ... 
 how he is bound to use the ship ... 
 compensation to be made by him for not supplying cargo 
 
 primage and average 
 
 CHARTER-PARTY 
 definition of 
 
 by whom to be executed ... 
 authority of master to enter into 
 the instrument of . . . 
 
 stamp on 
 
 parol evidence as to party signing being agent 
 
 cesser clause as to liability 
 
 for an illegal purpose 
 
 remedies on, specific performance of, &c. 
 jurisdiction of county courts 
 effect of penal clause in ... 
 contents of — 
 
 stipulation as to voyage, freight, liurthen of ship ... 
 
 naming safe port 
 
 as to providing and receiving cargo 
 
 clauses respecting demurrage 
 
 construction of 
 rule as to ... 
 
 evidence of nsage of trade when admissible 
 
 covenant to procure a license a. ... 
 
 PACE 
 
 539, 
 
 ... 90, 
 
 642, 705, 
 
 ... 705, 
 
 78, 79, 662- 
 
 ... 688, 
 
 s articles, &c. 
 
 50, 650, 780, 
 
 ... 652, 
 
 46, 644, 650, 
 
 355 
 
 564 
 810 
 
 257 
 
 v 
 
 730 
 
 755 
 905 
 -664 
 850 
 
 885 
 
 903 
 
 669 
 963 
 
 782 
 784 
 766 
 884 
 
 178 
 
 
 
 633 
 
 . . . • .* 
 
 641 
 
 . . . . .• 
 
 725 
 
 
 
 296 
 
 I, 25, 221 
 
 239 
 
 • > • • •• 
 
 343 
 
 . . • • .• 
 
 344 
 
 
 
 345 
 
 83 
 
 174 
 
 
 175 
 
 
 
 83 
 
 
 
 175 
 
 
 
 174)1 
 
 
 
 178 
 
 
 
 178 
 
 
 
 183 
 
 .'.".' r 
 
 "6 
 
 179 
 886 
 217 
 
 179 
 181 
 183 
 189 
 183 
 183 
 210 
 184
 
 INDEX. 
 
 Charteii-Party — continued. page 
 
 contents of — continued. 
 
 as to stip being ready to load and unload ... 184 
 
 as to commencement of voyage and deviation ... ... ... 187 
 
 despatch money ... ... ... ... ... ... ... 189 
 
 loading and unloading by charterer ... ... ... ... 189 
 
 as to freight payable and damages for not loading cargo . . . 196, 344 
 covenants in — conditions precedent — 
 
 rule to discover whether covenant condition precedent ... 200, 207 
 
 stipulations as to time for departure of ship from port 205 
 
 dissolution of contracts of ... ... ... ... ... ... 436 
 
 by consent of parties ... ... ... ... ... ... 436 
 
 dispensation of conditions in ... ... ... ... ... 448 
 
 dissolution by ■\var ... ... ... ... ... ... ... 437 
 
 by blockade of port of destination ... ... ... ... 442 
 
 not dissolved liy embargo or temporary restraint ... ... ... 439 
 
 or delay from natural impediments to navigation 329 
 
 of blockade of port of departure 441 
 
 CINQUE PORTS 
 jurisdiction in 
 salvage therein 
 pilots of — See Pilots 
 
 CLEARANCE OF SHIP 
 
 conditions to , 
 
 under Customs Act outwards 
 
 imvards 
 
 label 
 
 of passenger sliip 
 
 CLEIRAC 
 
 COAST GUARD 
 
 remuneration for service of, in case of wreck 
 
 appointment of, as receiver of ■v\Teck 
 
 COASTING TRADE 
 
 .ships employed in, when exempted from compulsory pilotage 
 hiring of seamen employed in 
 
 Customs Act as to ... ' 
 
 of colonies ... 
 
 COLLISION— See Maritime Lien. 
 
 of the ci^-il and maritime law respecting it 
 
 law and practice of Court of Admiralty ; causes of col'lision ... 
 arrest of ship and i^rocedure thereon 
 
 how damage estimated 
 
 jiuisdiction of Court of Admiralty ... '..'. '". 
 in cases of collision Avith foreign vessels 
 
 action on foreign judgment [ 
 
 County courts jurisdiction 
 
 Vice-Admiralty courts jurisdiction ... ,,, 
 
 enactments and regulations as to lights, &c, ... 
 
 enactments ' "'* 
 
 Orders in Council for preventing collisions at sea. 
 
 rules concerning lights 
 
 sound signals for fog [[ 
 
 .'^peed of ship to be moderated in fog' ... 
 
 steering and sailing rules .[. 
 
 no sliip to neglect 'proper precautions 
 reservation of rules for harbom-s, &c. ... 
 
 ... vui 
 565, 611, 618 
 ... 150,890 
 
 637, 655, 703, 724 
 ... 287, 655 
 
 318 
 
 291 
 
 805, 806, 870 
 
 800 
 731 
 
 719 
 666 
 
 292 
 
 885 
 
 ... 573 
 ... 575 
 
 ... 577 
 ...577n 
 
 578, 842 
 ... 579 
 ... 580 
 
 880, 8S6 
 ... 581 
 ... 681 
 
 894, 899 
 ... 581 
 ... 584 
 ... 587 
 ... 587 
 ... 587 
 ... 689 
 ... 590 
 
 ...581, 
 
 580, 
 850,
 
 INDEX. 
 
 Collision — continued. _ page 
 
 enactments and regulation!? as to liglits, &c. — continued. 
 
 special lights for s([narlrons and convoys ... ... ... ... 590 
 
 anclioring -where drift-net lisliing going on 590 
 
 duties of master in case of 590,894 
 
 to be entered in official log 701,708 
 
 law of England as administered in common law courts 591 
 
 miscellaneous cases 591 
 
 liability of tug and tow 592 
 
 rights of passenger 592n 
 
 where pilot compulsorily employed ... ... ... ... ... 592 
 
 maritime lien for damage caused by ... ... ... ... 577,594 
 
 whether owner or charterer liable lor 21, 25, 221, 239 
 
 limitation of shipowners liability — See Limitation of Liability. 
 
 by vessel of crown ... ... ... ... ... ... ... ... 593 
 
 action in jjcrsonam aitei' indgiaent in rem ... ... ... ... 593 
 
 with mooring anchor 593 
 
 with piers, &c, ... ... ... ... ... ... ... ... 593 
 
 COLONIAL LIGHTHOUSES 798 
 
 COLONIAL SHIPPING ACT, 1868 884 
 
 COLONIAL VOYAGES 
 
 meaning of, in Passengers Act, 1855 829 
 
 what provisions of Passengers Act, 1855, to apply to 828 
 
 COLONIES 
 
 power of legislature of, over M. S. Act 754 
 
 acts and laws of, when they can be enforced throughout the empire 702 
 
 engagement of seamen in 668 
 
 for colonial ships ... ... ... ... ... ... ... 666 
 
 trial of offences when person charged is in 694 
 
 survey of passenger ships in ... ... ... ... ... 829, 905 
 
 grant of terminable certificates of registry of ship in . . . ... ... 884 
 
 appointment of registrars of slrips in 885 
 
 surveyors in . . . ... ... ... ... 884 
 
 regulation of coasting trade in ... ... ... ... 885 
 
 certificates to masters, mates, and engineers ... ... ... ... 885 
 
 saving in M. S. Act, 1876, as to colonial inland waters 914 
 
 COLOUES 
 
 carrying false 296,656 
 
 COMMENCEMENT OF VOYAGE 297 
 
 COMMON CARRIERS 
 
 liability of shipowners as .... ... 257 
 
 COMPLAINT 
 
 power of seamen to make 684, 686, 693, 957 
 
 COMPULSORY PILOTAGE— See Pi7o<s 155,714,719 
 
 CONDEMNATION 
 
 of ships unfit for service by courts abroad ... 14 
 
 no such jurisdiction kno\vn to law of England 14 
 
 of captured ships 17 
 
 of prizes, &c., official copy thereof to be produced at the time of 
 
 registry ; ... < 44 
 
 CONDITION 
 
 precedent in charter-party, what shall be and what not ... 200, 207
 
 Index. 
 
 CONFLICT OF LAAVS 
 
 CONSIGNOK — See Bill of Lading Conveyance of Goods in Gcneml 
 Stoppage in Transitu. 
 wlien property in goods passes from, tu consignee 
 ■^vlien lie is to sue for damage to goods ... 
 endorsement of bill of lading 
 Avhen he cannot alter destination uf consignment 
 stoppage ift ?ra/m<i/, by 
 
 CONSOLATO DEL MAKE 
 
 CONSULAR OFFICER 
 what it includes 
 
 to make retm-ns to Board of Trade 
 
 may inspect documents, &c 
 
 CONTENT 
 
 ■what 
 
 form of ... ... 
 
 CONTRABAND GOODS 
 
 must not be taken in ship by master 
 
 nor shipped by merchant 
 
 smuggling by seamen 
 
 freight not payable to a neutral vessel in respect of 
 
 CONTRIBUTION— See Average General. 
 
 of part-owners towai'ds expenses of ship 
 
 CONVEYANCE 
 
 of goods in general ship — See Bill of Lading . . . 
 the usual mode of entering into this contract 
 by what law consti'ued 
 
 of bills of lading — See Bill of Lading 
 
 CONVICTION 
 
 mode of proceeding under M. S. Act, 1854 
 form of, under Passengers Act 
 
 CONVOY 
 
 sailing with 
 
 disobeying orders of commander of, &c. ... 
 
 general average in respect of ship waiting for . . . 
 
 when l)ill of lading amounts to a warranty to sail with comoy 
 
 covenant to sail with first... 
 
 TAGK 
 
 ... 702 
 Ship — 
 
 261—278 
 ... 261 
 ... 274 
 
 263—278 
 ... 401 
 
 633, 
 
 803 
 635 
 635 
 
 290 
 290 
 
 287 
 343 
 689 
 399 
 
 63 
 
 254 
 254 
 254 
 257 
 
 ... 748 
 840, 841 
 
 298 
 123,303 
 518 
 255 
 202 
 
 CORPORATION 
 
 declaration of owners^hip of ship by 
 
 registration of ship by 
 
 niimicipal, may grant sites lor sailors' homes 
 
 COUNTERCLAIM 
 
 setting up, in an action 
 
 COUNTERMAND 
 
 of delivery — See Stoppage in Transitu, 
 
 G47, 764, 770 
 
 643 
 
 754
 
 INDEX. 
 
 COUNTY COURTS 
 
 Admiralty jurisdiction of 
 
 ill collision cases ... 
 
 Act, 1868 
 
 Act, 1869 ... 
 
 COURT OF SURVEY— See /SwmT/ 
 
 CREW— See Seamen. 
 
 account of 
 
 of changes in 
 
 agreement with — See Agreement — Seamen. 
 form of copy of agreement accessible to . . . 
 changes in, to be reported 
 
 CRIMES -See Offences. 
 
 in tenitorial waters 
 
 mode of i^rocedure for certain 
 
 by British subjects on board ships 
 
 CUSTOMS 
 
 duties of officers of, in cases of wreck 
 
 expenses incurred by commissioners of, how to be paid 
 effect on claim for demurrage on detention by officers of 
 officers of, their duties in clearance of ships outwards , . . 
 
 their duties on arrival 
 
 officer of, refusing to deliver goods until freight paid ... 
 
 to make return of ships, to registrar 
 
 I'AGE 
 
 ... viii 
 
 ... 580 
 
 ... 870 
 
 ... 886 
 
 ... 901 
 
 ...934, 942, 968, 972 
 961 
 
 954 
 
 668 
 
 919 
 
 794 
 879 
 
 732 
 
 754 
 249 
 287 
 318 
 240 
 699 
 
 D. 
 
 DAMAGE 
 
 done to cargo, effect of, on freight 
 
 DAMAGES 
 
 may exceed penalty 
 
 for not loading ship, how estimated 
 in cases of collision — See ColUdon. 
 
 DAMAGING 
 
 ship or stores, imnishnifut nf seamen fur 
 
 DANGEROUS CARGO 
 
 DANGERS OF SEAS, &c 
 
 DAY 
 
 definition of, as to demurrage 
 
 DEAD FREIGHT 
 
 lien for 
 
 DEATH 
 
 transmission of interest in sliip by 
 
 of living animals during voyage 
 
 ... 362 
 
 ... 217, 246 
 196 
 
 ... 138, 689 
 287, 895, 896 
 ... 258,329 
 
 243 
 
 218;i 
 
 ... 48 
 ... 350
 
 INDEX. 
 
 Death — continncJ. _ page 
 
 of seaman, effect of, on wages 464,675 
 
 on board ship, inquiry into 696,958 
 
 registration of 697/1 
 
 DEBT 
 
 •when above 5*\ not recoverable from .seaman 687 
 
 DECEASED SEAMEN 
 
 wages and. effects of 675 
 
 DECK AND LOAD LINES 907 
 
 DECK CARGO 
 
 dues for 906 
 
 timber in winter 907 
 
 general average in respect of ... ... ... ... ... ... 520 
 
 regulations of 18 & 19 Vict. c. 119, respecting, in passenger ships ... 807 
 
 DECKS 
 
 on what, passengers may be carried 481 
 
 of passenger ships must be constructed to satisfaction of emigration 
 
 officer 488 
 
 space to be allowed between 488 
 
 upper passenger, meaniiig of ... ... ... ... ... ... 803 
 
 lower passenger, meaning of 803 
 
 DECLARATION— See British Ship. 
 
 to be made on registering ships ... ... ... ... ... ... 43 
 
 of ownership of ship, by whom to be made ... ... ... 53, 643 
 
 evidence of ... ... ... ... ... ... ... ... 55 
 
 punishment for false 56,799 
 
 on lo.ss of certificate of registry of ship ... ... ... ... ... 645 
 
 by transferee of sliip ... ... ... ... ... ... 647,770 
 
 of o^\'nersllip of ship by indivadual, form of 757, et seq. 
 
 by joint owners, form of 759,761 
 
 in special cases, form of 763 
 
 by body corporate, form of 643, 764 
 
 on transmission by bankruptcy ... ... ... ... ... 772 
 
 by marriage ... ... ... ... ... ... ... 774 
 
 by mortgagee on transmission 649,780 
 
 by body corporate as transferree 647,770 
 
 by representatives of deceased owner 647,770 
 
 DEEDS 
 
 by whom to be executed 176 
 
 DELAY — See Demurrage, 
 
 in comnrencement of voyage 184,189,306 
 
 DELIVERY 
 
 of ship to veiidee 2 
 
 of cargo — See Carfjo. 
 
 DELIVERY ORDER 
 
 effect of transfer of, on right to stop goods in transitu 426 
 
 DEMISE OF SHIP 
 
 when charter-party construed as 21, 25, 221, 239
 
 INDEX. 
 
 DEMURRAGE 
 
 what it is ... 
 
 Avlio liable for 
 
 when consignee liable for 
 ■ how to lie computed 
 
 Sundays, when counted 
 
 from what time days begin to run 
 
 construction of stipulations respecting 
 
 clause as to cesser of liability 
 
 delay occasioned by frost, &c. 
 
 how regulated by usage ... 
 
 when demurrage ceases ... 
 
 no lien for ... 
 
 action for ... 
 
 remarks on cases relating to 
 
 DENIZENS 
 
 may own British ships 
 
 DEPOSITIONS 
 
 when evidence 
 
 DERELICT 
 
 what salvage allowed in cases of 
 
 liability to duties of foreign goods found 
 
 DESERTION OF SEAMEN 
 
 what amounts to ... 
 
 entering into Queen's service not 
 forfeiture of wages by 
 punishment for 
 apprehension of deserters ... 
 application of forfeitures for desertion 
 harbouring, &c., deserters ... 
 compensation for unnecessary detention on char 
 
 DESPATCH MONEY 
 
 DESTROYING 
 
 a ship, how punished 
 
 DETENTION 
 
 of ship 
 
 DEVIATION 
 
 from voyage mentioned in charter-party 
 master should not in general deviate 
 to save life 
 
 DIETARY SCALE 
 
 on board passenger ships , 
 
 DISCHARGE— See Seamen. 
 of seamen ... 
 
 form of . . . 
 
 fees on . . . 
 
 of mortgage,^ entry of 
 
 and payment of wages — See Seamen 
 
 PAGE 
 
 ... 241 
 ... 241 
 241, 243 
 ... 243 
 ... 243 
 ... 243 
 ... 246 
 78, 250 
 ... 249 
 ... 251 
 ... 252 
 ... 218 
 ... 241 
 ... 253 
 
 .. 41 
 .. 696 
 
 ee of 
 
 544 
 
 744 
 
 ... 132, 924 
 
 134 
 
 134, 481, 691 
 134, 689—691 
 
 690 
 
 691 
 
 692 
 
 894 
 
 189 
 
 ... 
 
 
 138 
 
 ... 
 
 900, 
 
 912 
 
 187 
 306 
 309 
 
 813 
 
 et seq. 
 
 829 
 
 
 455, 
 
 670 
 963 
 661 
 
 
 649, 
 
 784 
 455
 
 INDEX. 
 
 PAGE 
 
 DISCIPLINE 
 
 provisions for maintaining ... 087 
 
 regulations as to, sanctioned by lii)ai(l of Trade ... !)38 
 
 abstract of clauses as to ... ... ... ... 956 
 
 DISOBEDIENCE— See Seamen. 
 
 offence of, by seamen 135 
 
 DISSOLUTION OF CONTRACTS 
 
 by mutual consent 436 
 
 by events rendering the performance of tlie contract illegal — of \var 
 
 and embargoes ... ... ... ... ... ... ... 437 
 
 by embargo ... 439 
 
 by blockade of tlie port of departure 441 
 
 of the port of destination 442 
 
 must be real and effective 443 
 
 recent decisions 448 
 
 master not bound to redeliver goods for which he has signed bills of 
 
 lading unless indemnified against them and freight jiaid 436 
 
 DISTRESS 
 
 signals of ... ... 895 
 
 on ship, for certain sums ordered to be paid ... ... ... ... 750 
 
 pa.ssing over adjoining land, when shij) in 732 
 
 inquiry when ship in 733 
 
 seamen in — See Seamen. 
 
 DOCKS 
 
 demurrage while waiting in ... ... ... ... ... ... 253 
 
 lien for goods in 240 
 
 DOCUMENTS 
 
 to be taken in ship 29G 
 
 of title to goods, assignment of 426,918 
 
 DRAUGHT OF WATER 
 
 of ship to be recorded 887,893 
 
 penalty on master making false statement to pilot as to 715 
 
 DRUNKENNESS 
 
 offence of, in seamen ... ... ... ... ... ... 135,687 
 
 of master 1.36,687,688 
 
 of pilot 717 
 
 of passengers 708, 852 
 
 DUES 
 
 for lighthoiises 724,856 
 
 Act as to exemption from 298,873 
 
 certain, not to be sold -v^-ithout con.sent of Board of Trade 631 
 
 DUNNAGE 
 
 must be provided by master 286 
 
 DUTIES OF MASTERS AND OWJsERS See Master— Otcicrs of SMps. 
 
 E. 
 
 EAST INDIA COMPANY 
 
 their charter-parties ... ... ... ... ... ... ... 219 
 
 sliips employed in observations, &c 343
 
 INDEX. 
 
 East India Co'sivx'sy —continued. page 
 
 ships trading within company'-^ chartf-r 017,657 
 
 power to adopt i^rovisions of Passengers Ac I, isr)."), witliiu tcriiloiies of 829 
 duty of, to relieve destitute lascars, &c ... ... . . , 800 
 
 EAST INDIAN SHIPS 
 
 3 & 4 Vict. c. 56, relating to 617 
 
 EAST INDIES 
 
 provisions of 17 & 18 Vict. c. 104, as applied Ly East Indian and 
 
 colonial governments, may be enforced throughout the Empii'e... 702 
 Acts of, to be subject to disallowance, and require sanction as in other 
 
 cases 702 
 
 contracts with natives of, as seamen 753,801 
 
 EFFECTS 
 
 penalty for detaining seaman's 144,687 
 
 of deceased seaman ... 675 
 
 EMBAEGO 
 
 general average in respect of 517 
 
 when it puts an end to contracts lor carriage of goods 439, 441 
 
 effect thereof as to wages 464,478 
 
 EMBEZZLEMENT— See, S'ert)/U'?i—il/rts^C7-. 
 
 when shipowners liable for ... ... ... ... ... 86, 334 
 
 limitation of liability for ... ... ... ... ... ... 341 
 
 forfeiture of seaman's wages by 487 
 
 of cargo or stores by mariners, effect thereof upon their wages . . . 689 
 in mercantile marine otlices 848 
 
 EMIGRANT SHIPS— See Passengers Act, 1855. 
 
 suggestions as to boats and fire at sea 170 
 
 regulations as to landing and embarking of emigrants 825 
 
 survey of — 8ee Passenger Ships and Passe nrjrr Steaiiurs 905 
 
 food space, signals, (Xc, in 808,906 
 
 EMIGRATION 
 
 commissioners 804, 890 
 
 officers 804 
 
 survey of ship by 807 
 
 suing for penalties ... ... ... ... ... ... ... 825 
 
 proof of their being 828 
 
 nmners 824 
 
 license of 824,840 
 
 definition of 803 
 
 EMPLOYERS AND WORKMEN ACT, 1875 
 
 applies to seamen, &c 924 
 
 ENDORSEMENT— See Ijif?o?-5enie}i<. 
 
 ENEMIES 
 
 resisting 309 
 
 ENGAGEMENT— See Seamen. 
 
 of seamen 665 
 
 ENGINEERS 
 
 qualifications of 80,847 
 
 for steam ships ... ... ... ... ... ... ... ... 846 
 
 certificates of, in colonies 885
 
 INDEX. 
 
 Engineers — continued. 
 
 investigating conduct of ... 
 
 declaration of surveyor respecting 
 
 fees on examination of 
 
 ENTRY 
 
 of goods inwards ... 
 outwards 
 
 EQUITIES 
 
 not excluded by M. S. Act 
 
 equity and law fused 
 
 ERASURES 
 
 in agreements with seamen must be attested 
 
 EVIDENCE 
 
 proof of ownership of ship 
 
 of agreement with seamen 
 
 of certificates of masters and mates 
 
 of release of wages by seamen 
 
 of negligence by pilot 
 
 certain certificates, &c., of board of trade to be received as 
 
 copies of register of ship 
 
 entries in official log 
 
 when depositions are 
 
 EXAMINATION 
 
 of masters and mates — See Master and Mates 
 
 where no local marine board 
 
 fees on 
 
 of pilots — See Pilots. 
 
 of engineers — See Engineers. 
 
 EXECUTORS 
 
 registry of, as owners of ship 
 
 EXERCITOR NAVIS 
 
 PAGE 
 
 . 847 
 . 848 
 . 926 
 
 ... 318 
 
 ... 287 
 
 ... 846 
 
 ... ix 
 
 ... 669 
 
 ... 656 
 
 55, 656 
 
 ... 669 
 
 ... 663 
 
 ... 671 
 
 ... 160 
 
 ... 634 
 
 ... 799 
 
 ... 701 
 
 ... 695 
 
 77, 662 
 ... 848 
 ... 786 
 
 48 
 84?? 
 
 F. 
 
 FACTORS' ACTS 
 defined 
 
 427, 614, 917 
 918 
 
 FACTOR— See Stoppage in Transitu. 
 
 formerly could not pledge bill of lading 426 
 
 law altered ' 427,614 
 
 persons in possession of symbols of property to be deemed true owners 
 thereof, for the purpose of j)ledge or deposit thereof ... ... 427 
 
 hond fide advances to persons entrusted -with possession of goods when 
 
 protected 
 goods entrusted to, contracts respecting them ... 
 
 fraudulent conduct of, how punished 
 
 exchanges of securities, when protected ... 
 
 agents' civil responsibility not to be diminished 
 
 secret revocation of entrustment of agency 
 
 vendors and vendees permitted to retain documents of title 
 
 transfer of documents of title 
 
 ... 
 
 432, 433 
 
 
 427, 614 
 
 ... 
 
 434, 616 
 
 
 ... 432 
 
 ... 
 
 ... 434 
 
 ... 
 
 ... 918 
 
 f title ... 
 
 ... 918 
 
 
 ... 918
 
 INDEX. 
 
 FALSE LIGHTS 
 
 prevention of 
 
 FEES 
 
 of receiver ... 
 
 for surveys ... 
 
 penalty on surveyor for receiving improper fees 
 
 for survey of passenger steamers ... 
 
 for examination of master or mate 
 
 on examination of engineers 
 
 at mercantile marine offices 
 
 where certain, to be paid 
 
 FINES 
 
 list of 
 
 deduction of, from seamen's wages 
 
 FIEE 
 
 on ship board, when owners answerable for 
 
 when occasioned by lightning 
 offence of setting fire to ships 
 precautions to prevent 
 
 FISHERMEN 
 
 agreements with 
 
 FISHERY 
 
 ships employed in, what, need not be registered 
 marking of 
 application of 3rd part of M. S. Act, 1854 to 
 
 PAGE 
 
 . 72G 
 
 792 
 
 896, 898, 914 
 ... 704 
 ... 787 
 ... 786 
 ... 926 
 G61, 786 
 ... 914 
 
 944 
 692 
 
 333, 341 
 ... 332 
 ... 138 
 ... 172 
 
 893 
 
 42 
 893 
 848 
 
 FISHERY, GREENLAND 
 
 fishing stores of ships employed in, to be valued as part of the ship ... 341 
 
 FISHING TACKLE 
 
 whether included under the words s/iip's /tmii^wre 3 
 
 FLAG 
 
 improperly using a British 
 
 54, 656 
 
 FOG 
 
 ...587,703,850,904 
 
 signals and Lights 
 
 FOREIGN COUNTRY 
 
 what 
 
 FOREIGN COURT 
 
 effect of sentence of viii, 14 
 
 FOREIGN ENLISTMENT ACT 
 
 building, &c. , ships contrary to 
 
 restoring iDrizes brought into port contrary to 
 
 FOREIGNERS 
 
 not to be interested in British ships unless naturalized _ 
 
 application of, to court, to compel sale of ship to which entitled by 
 
 transmission ... ... ... ... ••• 
 
 may be employed in British ships 
 
 3 T 
 
 107 
 
 41m 
 17 
 
 41 
 
 48 
 82
 
 INDEX. 
 
 F0REIG>^-G0INC4 SHIP page 
 
 what is ... ... ... ... ... . • . ... ... ... 633 
 
 lists to be made lor G97 
 
 masters and mates for 063 
 
 account of crew of — See Crcu-. 
 
 FOREIGN GOODS 
 
 found derelict to be subject to duties as on importation 744 
 
 FOREIGN JUDGMENT 
 
 action on, in Admiralty Court ... 580 
 
 when conclusive ... ... ... ... ... ... ... vui, 17n 
 
 FOREIGN PORTS 
 
 may be declared ports of registry of ships 896 
 
 offences at — See " Offences." 
 
 FOREIGN SEA MARKS 
 
 expenses of advertising 927 
 
 FOREIGN SEAMEN 
 
 employment of 82 
 
 suits by, for wages 491 
 
 FOREIGN SHIPS 
 
 registry of, as British ships 44, 893 
 
 action for possession of ... ... ... ... ... ... ... 5 
 
 pilots for ... ... ... ... ... ... ... ... ... 160 
 
 survey of passenger steamers ... ... ... ... ... ... 905 
 
 enforcing payment for necessaries sujiplied to ... ... ... ... 103 
 
 Admiralty jurisdiction in case of collision with, or damage done 
 
 by 579,751 
 
 in case of -wi'eck of, consul-general to be deemed agent of o"ivner ... 800 
 
 lights on 859 
 
 sailing rules as to ... 859 
 
 salvage ... ... ... ... ... ... ... ... ... 859 
 
 measurement of tonnage of 859 
 
 overloading of ... ... ... ... ... ... ... ... 903 
 
 power to apply certain provisions of M. S, Acts to 913 
 
 as to provisions respecting going on board ship before seamen leave 
 
 applj-ingto 923 
 
 FORFEITURES 
 
 incivrred by seamen under M. S. Act, 1854, provisions respecting ... 691 
 of ship for improperly exercising the privileges of British ships, &c. 48, 54 
 
 655, 870 
 
 of seamen's wages — See Seavien 477,481 
 
 when illness caused by his own default ... ... ... ... 877 
 
 application of, for desertion ... ... ... ... ... ... 691 
 
 questions of, may be decided in suits for wages 692 
 
 FORGERY 
 
 of register book, certificates, «S:c. .. . ... ... ... ... 56,655 
 
 of forms issued by board of trade ... ... ... ... ... 634 
 
 of master's or mate's certificate ... ... ... ... ... ... 664 
 
 of certificate of character 672 
 
 FORMS — See Contents and AjjpencUx. 
 
 Board of Trade's power as to ... 634 
 
 penalty for not using forms 634
 
 INDEX. 
 
 FREIGHT— See Clicirter-Party—BiU of Lading. PAGE 
 
 generally not due unless voyage performed ... ... ... ... 346 
 
 cases where partial payment may be claimed 368 
 
 bixt parties may stipulate by express words for payment by antici- 
 pation 347 
 
 advance of, not recoverable, although ship lost 349 
 
 where live animals die, &c., during voyage 350 
 
 where ship sold during voyage 350 
 
 modes of calculation of ... ... ... ... ... ... ... 351 
 
 of an agreed sum for the voyage of tonnage freight 351 
 
 time freight ... ... ... ... ... ... ... ... 351 
 
 where cargo increased since shipment ... ... ... ... ... 351 
 
 time and manner of payment ... ... ... ... 354 
 
 of the words on payment of freight in bill of lading 354 
 
 implied contract to pay, by receiver of goods under bill of lading ... 357 
 liability of consignee and endorser of bill of lading for ... ... 360 
 
 recompense in nature of freight to which shipowner sometimes entitled 361 
 on illegal voyages .. . ... ... ... ... ... ... ... 362 
 
 where goods damaged ... ... ... ... ... ... ... 362 
 
 where part only of goods brought to place of destination 368 
 
 fro rata itineris lyeracti ... ... ,.. ... ... ... ... 368 
 
 when the right to freight commences 391 
 
 of entire, divided, and intermediate voyages 392 
 
 Avhere goods condemned as j)rize ... ... ... ... ... 398 
 
 hypothecation of 118 
 
 when mortgagee entitled to 23 
 
 county courts jurisdiction in actions for... 886 
 
 contribution of, to average ... ... ... ... ... ... 527 
 
 of freight of goods jettisoned to average ... ' 361 
 
 Hen for 216,221,861 
 
 by French law 216 
 
 clause in English charter-parties, whereby merchant binds cargo 217 
 goods cannot be detained for breach of covenant to supply a full 
 
 cargo 218 
 
 shipowner, who has chartered his ship,cannotdetain goods for more 
 
 freight than stipulated in respect of them by the bill of lading 231 
 when owner by charter-party parts with possession of ship 221, 237 
 right of lien, exists, except when it appears by the contract that 
 
 delivery is to precede payment... ... ... ... ... 234 
 
 or that the shipowner or charterer has waived or limited his 
 
 rightoflien _ 234 
 
 when payable by bills, lien continues till they are given . . . 236 
 
 and would revive if dishonoured before goods parted with ... 236 
 when by approved bills, and bills negotiated, right of objecting to 
 
 them and of retention lost ... ... ... ... ... 236 
 
 lien for, revives on recapture ot ship ... ... ... ... 236 
 
 lien not defeated by bankruptcy of charterer, or assignment, or 
 
 pledge of his goods 233 
 
 extends to all the merchandise consigned to the same person . . . 232 
 but not if under different contracts for conveyance to different 
 
 places 234 
 
 where shipowner enters and lands goods in default of owner of 
 
 same doing so ... ... ... ... ... ... ... 861 
 
 enactments as to discharging cargo and retaining lien... ... ... 24(» 
 
 payment of, to bottomry bondholder, payment to shipowner 400 
 
 FROST 
 
 effect of detention by, on contract by charter-party 252 
 
 effect of, on claim for demurrage... ... ... ... ... ... 249 
 
 FUND, MERCHANT SEAMAN'S 
 
 act relating to ... '... ... .,, 620 
 
 3 T 2
 
 INDEX. 
 
 G. 
 
 GENERAL AVERAGE— See Average, General. page 
 
 GENERAL SHIP— See Conveyance of Goods hy. 
 
 what so called 83,254 
 
 contract for conveyance of goods in — Qee BUI of Lading 254 
 
 notice of destination of 255 
 
 GIBRALTAR 
 
 registry of ships there 421 
 
 GOD 
 
 acts of 327 
 
 GOODS— See Cargo— Bill of Lading— Lien for Freight — Stoppage ia 
 Transitu. 
 
 Avhen property of, vested by shipment in consignee 261—274 
 
 saved from wreck, to he forwarded 744 
 
 stowed on deck, jettison of 520 
 
 GOVERNOR-GENERAL OF INDIA IN COUNCIL-See Last Indies. 
 power of, to adopt the provisions of Part III of M. S. Act, 1854, to 
 
 places within his jurisdiction ... ... ... ... ... 702 
 
 and of Passengers Act, 18 & 19 Vict. c. 119 829 
 
 GOVERNORS OF COLONIES 
 
 to register sliips 642 
 
 GRAIN CARGOES 906,927 
 
 H. 
 
 HANSE TOWNS 
 
 laws of 
 
 HARBOURS, &c. 
 
 lights in 
 
 navigation in 
 
 HEALTH— See &'rt/ii^)^ 
 
 and accommodation of seamen, provisions for ... 
 on passenger ships ... 
 
 HIRE OF SHIP— See Cliarter-party. 
 
 jurisdiction of county coiu'ts in actions for 
 
 HIRING OF SEAMEN— See Seamen— Agreement 
 
 HOLi^HEAD 
 
 harhour master may be a justice 870 
 
 HOME-TRADE SHIPS 
 
 what they are 633 
 
 passenger ships ... ... ... ... ... ... ... ... 633 
 
 account of voyages, form of 972 
 
 HOSPITAL 
 
 for merchant seamen disabled 142 
 
 in passenger ships... ... ... 808 
 
 
 ... 
 
 851 
 
 ■ • 
 
 
 851 
 
 143, 
 
 144, 
 
 ,457 
 819 
 
 886 
 451
 
 INDEX. 
 
 HULL AND NEWCASTLE page 
 
 appointment of sub-commissioners of pilotage by Trinity Houses of... 721 
 
 HUMAN LIFE 
 
 reward for preservation of 556 
 
 salvage of 556 
 
 HUSBAND OF SHIP 
 
 how appointed, bis duties 62,63 
 
 pledging credit of owners... ... ... ... ... ... ... 63 
 
 lien of, on share of part-owner for disbursements, when 63 
 
 HYPOTHECATION— See Bottomry— Maritime Lien. 
 
 form of 979 
 
 I. 
 
 ILLEGAL EMPLOYMENT OF SHIPS 344 
 
 freight on 362 
 
 dissolution of contract, by event rendering employment of ship 
 illegal 437 
 
 ILLNESS 
 
 of seamen, expenses in case of, by neglect of ouiier or master ... 877 
 wages ot seamen in case of, where caused by his own default 877 
 
 IMPOSITION 
 
 protection of seamen from 686 
 
 INDIA— See East Indies. 
 
 relief of destitute lascars ... ... ... ... ... ... ... 800 
 
 adopting Passengers Act, 1855, for 829 
 
 INDIAN-BUILT SHIPS 
 
 3&4Vict. c. 56 617 
 
 INDORSEMENT 
 
 of change of master on certificate of registry ... ... ... ... 46 
 
 of bill of lading — Bee Bill of Ladinrj 275 
 
 INLAND NAVIGATION 
 
 rules as to ... ... ... ... ... ... ... ... ... 851 
 
 INSPECTION 
 
 of register books 53,653 
 
 of documents, &c., by Board of Trade 635 
 
 medical, of seamen... ... .-.. ... ... ... ... ... 878 
 
 passengers 817 
 
 INSPECTORS 
 
 appointment of, by Board of Trade ... ... ... ... ... 635 
 
 their duties 635, 636 
 
 INSTRUCTIONS 
 
 from Board of Trade to receivers of Admiralty droits, as to apportion- 
 ment of salvage ... ... ... ... ... ... ... 929 
 
 to masters, as to agreements, &c., with crew ... ... ... ... 939 
 
 where vessels enrfaKed in home trade ... ... ... ... 952
 
 iiNDEX. 
 
 JNSURAXCE 
 
 of a sliij) by one part-owner for others 
 
 of passage money ... 
 
 against events, where owner's liability limited... 
 
 INTERPLEADER 
 
 INTERPRETER 
 
 when to be carried on passenger ships 
 
 PAGE 
 
 ... 62 
 ... 819 
 ... 859 
 
 42011 
 
 ... 816 
 
 IRELAND 
 
 effect of the Act of Union in the case of an English ship hypothecated 
 
 there ' 107 
 
 application of M. S. A., 1876, to 914 
 
 port of Dublin corporation 633 
 
 commissioners of Irish lights 657/t 
 
 J. 
 
 JETTISON— ^ee Avemoe, General ...503 
 
 JEWELS 
 
 contribute to general average ... 527 
 
 JOINT OWNERS— See Part-Owners. 
 
 declaration of ownershiiJ of .ship by ... ... ... ... 759,761 
 
 JUDGMENT 
 
 when conclusive viii 
 
 JURISDICTION 
 
 of Court of Admiralty — See Admindfy. 
 
 JUSTICES OF THE PEACE— See Scdvayc—Balvacje in the Cinque Ports 
 — Wreck and Marine Stores — Seamen. 
 jurisdiction of ... ... ... ... ... ... ... ... viii 
 
 their authority to conuuit seamen in certain ca.ses 127 
 
 L. 
 
 LADING— See Bill of Ladincj. 
 
 LASCARS 
 
 relief, &c., of destitute ... 
 
 LAW AND EQUITY FUSED 
 
 LEAK IN SHIPS 
 
 LEAVING SEAMEN ABROAD 
 
 LE GUIDON 
 
 ... 800 
 
 ix 
 
 ... 016 
 
 ... 679 
 
 V
 
 INDEX. 
 
 LIABILITY PAGE 
 
 of o\raers of ships ... ... ... ... ... ... ... ... 744 
 
 in cases of compulsory pilotage 159 
 
 limitation of, of shipowners — See Limitatimi of Licibilitij ... 338, 744 
 
 mode of procedure to enforce ... ... ... ... 341,745 
 
 LICENCE — See Pilots — Master — Seamen — Passage Broker. 
 
 for voyage, covenant to obtain 184 
 
 to persons to procure seamen for ships ... ... ... ... ... 461 
 
 LIEN — See Liens Maritime. 
 
 for repairs, necessaiies, &c. ... ... ... ... ... ... 99 
 
 of shipwrij^ht 100,599 
 
 practice of paying material men out of x^i'oceeds in the Court of Ad- 
 miralty 102 
 
 on ship for vseamen's wages ... 489,596 
 
 for master's wages ... ... ... ... .. -.. 494,674 
 
 on goods for freight — See Freight , 216,240,861 
 
 for breaches of covenant 218 
 
 for general average ... ... ... ... ... . . 528/?. 
 
 for salvage ... ... ... ... ... ... ... ... 537,595 
 
 by bottomry bond — See Bottomry. 
 
 hy ii respondentia ]Mnd 106,121 
 
 on passengers' luggage ... ... ... ... ... ... ... 166 
 
 of one part-owner on the share of another 63 
 
 LIENS MARITIME- See Lien. 
 
 of the definition and nature of . . . ... ... ... ... ... 594 
 
 difference between, and proceeding iu re»i ... ... ... ... 594 
 
 from what time they accrue ... ... ... ... ... ... 594 
 
 their ranking and priority, tuier sc ... ... .. ... ... 595 
 
 of marshalling assets for their protection ... ... ... ... 599 
 
 of their duration and extinguishment ... ... ... ... ... 601 
 
 of procedure in Admiralty to enforce them ... ... ... ... 602 
 
 maritime law of foreign states, as to priority of lien, &c 607 
 
 LIFE 
 
 salvage for preservation of 556 
 
 LIFE BOATS— See Boats. 
 
 LIFE BUOYS 
 
 for sea-going ships 702 
 
 LIGHT 
 
 supply of, in passenger ships ... ... ... ... ... ... 808 
 
 LIGHT DUES 
 
 regulations of M. S. Act, 1854, respecting 72.3 
 
 LIGHTS 
 
 rules as to ... 
 for squadrons and convoys 
 on foreign ships 
 enactments as to ... 
 false, prevention of 
 
 LIGHTS, BUOYS, AND BEACONS 
 damage to . . . 
 
 LIGHTERS 
 
 duty of master to watch goods in, on the River Thames 
 liability of owners thereof for damage to goods in 
 
 
 1 .i'j 
 
 850 
 
 581, 
 
 584 
 
 
 590 
 
 
 859 
 
 703, 
 
 904 
 
 
 726 
 
 726 
 
 325 
 
 285
 
 INDEX. 
 
 LIGHTHOUSES page 
 
 what, are within M. S. Act, 1854 633 
 
 management of "722 
 
 provisions relating to 'i22, et seq. 
 
 surrender of local 726 
 
 damage to lights, buoys, and beacons 726 
 
 prevention of false lights 726 
 
 expenses of 727,728 
 
 dues for 724,856 
 
 colonial 798 
 
 under local authorities, inspection of 855 
 
 expenses of, incurred in removing "\^Tecks ... ... ... ... 927 
 
 LIGHTNING 
 
 loss happening by 333 
 
 LIMEJUICE 
 
 to be kept on certain ships 876 
 
 supply of, to passengers ... ... ... ... ... ... 814,870 
 
 as to sale of 143,877 
 
 LIMITATION OF ACTIONS 
 
 lor seamen's wages 493 
 
 LIMITATION OF LIABILITY OF MASTERS AND OWNERS 338, 744 
 
 858 
 
 of foreign laws and ordinances on this subject 338 
 
 repealed enactments ... ... ... ... ... ... ... 339 
 
 provisions in M. S. Acts 341, 858 
 
 loss by tire ... ... ... ... ... ... ... ... ... 341 
 
 robbery of valuables 341 
 
 limitation of amount for which shipowners liable in certain cases ... 341 
 
 liability of master and seamen in those capacities 342 
 
 admii-alty jiuisdiction 843 
 
 LIST 
 
 to be made for foreign-going ships 697 
 
 for home trade ships 699 
 
 of passengers 806,830,869 
 
 form of 831,832 
 
 when evidence ... 859 
 
 LOADING SHIP— See Stoicarje. 
 
 agi-eement in charter-party as to 183, 184, 189 
 
 damages for not ... \ 196 
 
 o^\^lers and masters duty as to 285 
 
 overloading 900 
 
 foreign ships 903 
 
 LOAD LINE 
 
 marking of 907,908 
 
 LOCAL MARINE BOARDS 74,658 
 
 constitution of ... ... ... ... ... ... ... ... 758 
 
 voters for members of, qualihcation of, &c 658,659,660 
 
 members of, qualifications of 660 
 
 error in elections of, not to vitiate acts done 660 
 
 may determine number of quonmi 848 
 
 minutes and business of 660 
 
 if any, fails to discharge its duties, Board of Trade may assume duties 
 
 of, or direct a new election .". 660 
 
 Board of Trade, on complaint, may alter arrangements made by ... 660
 
 INDEX. 
 
 Local Marine Boards — continued. page 
 
 to establish mercantile marine offices 660 
 
 expenses of 727 
 
 LODGING-HOUSES 
 
 for seamen, licensing of 923 
 
 overcharging and solicitations by keepers of 144,687 
 
 LODGING-HOUSE KEEPERS 
 
 overcharging, &c., seamen 687 
 
 licensing of 923 
 
 LOG-BOOK. 
 
 form and contents of official log 129, 700, 953 
 
 penalty for not properly keeping 129, 701 
 
 must be delivered up after voyage 129, 701 
 
 entry in, of offences 129, 136, 700 
 
 of wages and effects of deceased seamen 675 
 
 entries, "when evidence 701 
 
 of collisions 708 
 
 LONDON 
 
 admiralty jurisdiction of City of London court viii 
 
 LORD OF MANOR 
 
 claim of, to wreck 734 
 
 receiver to give notice to , 734 
 
 LOSS 
 
 of certificate of registry of ship 46,645 
 
 of mortgage or sale 652 
 
 of ship, notice of 47,646,895 
 
 list and official log to be sent home 699, 701 
 
 M. 
 
 MALTA 
 
 registry of ships there 4^ 
 
 MAN, ISLE OF 
 
 application of M. S. A., 1876, to 914 
 
 MANAGING OWNER 
 
 name of, to be registered 913 
 
 MANIFEST 
 
 contents of 289 
 
 3IARINE ORDINANCES 
 
 in the time of Louis XIV... ... ... ... ... ... {y j^i 
 
 MARINERS— See Seamen. 
 
 MARINE STORES 
 
 regulations to be observed by dealers in... ,., .,. .,, ... 739 
 
 MARITIME LIEN— See iioi il/rtniwHc , 504 
 
 MARKING 
 
 of British ships _ _ 392 
 
 of deck and load lines 43 907
 
 INDEX. 
 
 PAGE 
 
 MARRIAGE 
 
 transmission of interest in ships by 48 
 
 declaration on .. . ... ... ... ... ... ... ... 774 
 
 entry of, in official log 700 
 
 in ships list 698 
 
 MASTER 
 
 qualifications of ... ... ... . • . • • • • • . ... • • . 76 
 
 examination of 77, 662 
 
 where no local marine board ... ... ... ... ... 848 
 
 cevtihcates of 78,79,662,663 
 
 in colonies ... ... . . . ' ... ... ... ... ... 885 
 
 must take certificates A\ith him in his ship ... _ 663 
 
 registrar to record grants, cancellations, &c. , of certificates 663 
 
 evidence of certificate ... ... ... ... ... ... ... 663 
 
 in case of loss copy to be granted 663 
 
 false representations, &c., as to ... ... ... ... ... 664 
 
 investigating cases of incompetency ... ... ... ... ... 688 
 
 cancelling and suspending certificates 688, 850 
 
 pilot license to ... ... ... ... ... ... ... 154, 711 
 
 appointment and removal of 76» 
 
 change of ... ... ... ... ... ... ... ... ... 693 
 
 by naval court 693 
 
 documents to be handed over ... ... ... ... ... 692 
 
 removal of, by Court of Admiralty ... ... ... ... ... 687 
 
 powers of Board of Trade ... ... ... ... ... ... 688 
 
 authority of, to sell ship ... ... ... ... ... ... ... 5 
 
 charter ship ... ... ... ... ... ... ... ... 83 
 
 to enter into contracts relating to ship's employment ... 83, 256 
 to sisrn bills of ladin" ... ... ... ... ... ... 256 
 
 to order repairs and necessaries ... ... ... ... ... 90 
 
 to enter into bottomry contracts — See i>of<om?'y 104, 110 
 
 over mariners 124 
 
 over passengers — S>ee Pastsengcrs ... ... ... ... 161, 169 
 
 duty to his employers 122 
 
 \\-ith regard to ship's employment 83, 254 
 
 with regard to repairs of ship and necessaries ... ... ... 90 
 
 his general duties on board ship 124 
 
 contract of, for conveyance of goods in a general ship 254 
 
 usual mode of entering into tills contract 254 
 
 by what law construed 256 
 
 of bills of lading — Sea Bills of Lading 257 
 
 duties of, in respect of preparation for voyage 281 
 
 loading ship .\ ' 285, 286 
 
 under Customs Act 287 
 
 documents to be taken in ship 290 
 
 what colours he may carry 296 
 
 duties, as to commencement of voA'age 297 
 
 Avhentosail ". 297,298 
 
 must observe customs' regulations 298 
 
 delivery of passengers' list before clearance 806 
 
 .sailing with convoy 298 
 
 duties, in course of the' voyage 306 
 
 must proceed without delay or deviation 306 
 
 owner responsible for loss of goods dm-ing unjustified deviation ... 307 
 
 when deviation excused .' 306,309 
 
 must pursue the route prescribed by charter-party 308 
 
 or the usual route 308 
 
 must not delay unnecessarily in port of refuge 308 
 
 no deviation to take in additional cargo during unavoidable delay, 
 
 if delay or risk not increased therebv 308
 
 INDEX. 
 
 Master — continued. t*AGE 
 
 duties, in tlie course of the voyage — continued. 
 
 in case of collision 590, 894 
 
 resisting pirates ... ... ... ... ... ... ... 309 
 
 when ship becomes imseawoathy during 309 
 
 duty in respect of cargo 310 
 
 trans-shipment when proper 310 
 
 hypothecation and sale of cargo by 310 
 
 _ must take care of cargo during voyage 316 
 
 duties on completion of the voyage 317 
 
 must take care that shij) is properly moored or anchored ... 317 
 
 must comply with customs' regulations 318 
 
 what they are 318 
 
 must deliver cargo on protluction of bills of lading and payment 
 
 of freight, &c ]. ... 322-325 
 
 must wait time a2)pointed in demurrage clause 322 
 
 should take security for contributions to general average ... 322 
 
 his right to detain goods for freight per charter-party 322 
 
 what constitutes a delivery ... ... ... ... ... ... 324 
 
 list containing certain particulars to be made out and delivered 
 
 on ships discharge 697 
 
 protests 32,5 
 
 duties with respect to crew — See Seamen. 
 
 instructions to, as to agi-eements, &c., with his crew 939 
 
 where vessels engaged in home trade 952 
 
 as to offences by crew... ... ... ... ... ... ... 124 
 
 in respect of registration of seamen 145, 1 4G 
 
 when superintendent of mercantile marine ofhce may decide 
 
 question between master and crew 671 
 
 offences committed by 122 
 
 barratry — See Burratrij. 
 
 where ship under convoy 123 
 
 misconduct of master, endangering life or limb 687 
 
 out of H. M.'s dominions 125 
 
 remedies for his wages 494 674 
 
 admiralty juriscliction ' 843 
 
 provisions in M. S. Act, 1854, as to '. 657 
 
 MATERIAL MEN— See Repairs— Lien. 
 
 their claims upon the ship in specie by civil law 99 
 
 law of England, as to Iqo 
 
 MATES 
 
 ciualification of ' 76 
 
 examination of 77,062,848 
 
 certificates of 78,662—664,688 
 
 in colonics ... ... ... ... ... ... ... ... 885 
 
 cancelling [[[ '" qsq 
 
 pilot license to ... ... ... ... ... ... ... .._ ^jn 
 
 jMEASUREMENT OF TONNAGE 42,637 
 
 duty of, transferred to Board of Trade 889 
 
 by what surveyor to be made ... ... ... ... ... . 891 
 
 of foreign ships 859 
 
 MEDICAL MEN, &c. 
 
 in certain ships, to be carried ... ... ... ... ... 686 816 
 
 expenses of, for seamen, &c. , . . . ... ... ... ... . .' qq^ 
 
 medical inspection of seamen ... ... ... ... ... " 373 
 
 of passengers ... ... ., , ... ... ... . . _ _ g-j^y
 
 ... 
 
 to 
 
 848 
 
 660 
 
 894 
 
 • . • 
 
 660 
 
 75 
 
 661 
 
 661, 
 
 786 
 
 ■ •• 
 
 661 
 
 • . • 
 
 661 
 
 
 662 
 
 ... 
 
 699 
 
 
 620 
 
 620 
 
 926 
 
 INDEX. 
 
 MEDICINES PAGE 
 
 Avhat, to be provided for ships 829,876 
 
 selling bad medicines ... ... ... ... ... ... ... 877 
 
 for seamen — See Scaraoi 685 
 
 for passenger ships 816 
 
 MEETING AND PASSING OF SHIPS 587 
 
 MEECANTILE MARINE FUND 631,727,794 
 
 expenses of life-boats may be charged on ... ... ... ... 794 
 
 salvage of life may be charged on 735 
 
 fees for examination of engineers not to be paid to account of ... 926 
 
 MEECANTILE MAEINE OFFICES 
 
 formerly shipping offices ... 
 
 establishment of 
 
 Board of Trade control over 
 
 business of . . . 
 
 fees 
 
 business may be transacted at custom house 
 
 in London, sailors' homes may be such offices ... 
 dispensation -with superintendence of ... 
 duties of, with regard to documents sent to them 
 
 MERCHANT SEAMEN'S FUND 
 
 Act relating to 
 
 ■winding up of 
 
 MERCHANT SEAMEN (PAYMENT OF WAGES AND RATING) 
 ACT, 1880 921 
 
 MERCHANT SHIPPING ACT, 1854 632 
 
 Preliminary 632 
 
 Interpretation of terms 632 
 
 Part 1. Tlie Board of Trade— its general functions 634 
 
 2. British ships : their o-wnershiji, measurement, and registry... 636 
 
 3. Masters and seamen 657,848 
 
 4. Safety and prevention of accidents 702 
 
 5. Pilotage 709 
 
 6, Lighthouses 722 
 
 7. Mercantile Marine Fund '727 
 
 8. Wrecks, casualties, and salvage 730 
 
 9. Liability of shipowners... " 744 
 
 10. Legal procedure... » 748 
 
 11. Miscellaneous 753 
 
 Schedule 755 
 
 MERCHANT SHIPPING REPEAL ACT, 1854 793 
 
 M. S. A. AMENDMENT ACT, 1855 798 
 
 M. S. AMENDMENT ACT, 1862 846 
 
 M. S. ACT, 1867 876 
 
 M. S. ACT, 1871 887 
 
 M. S. ACT, 1872 889 
 
 M. S. ACT, 1873 ... 892 
 
 M. S. ACT, 1876 899 
 
 M. S. ACT (18.54) AMENDMENT ACT, 1880 925
 
 INDEX. 
 
 M. S. (FEES AND EXPENSES) ACT, 1880 ... 
 M. S. (CAREIAGE OF GRAIN) ACT, 1880 ... 
 MERCHANT SHIPPING (COLONIAL) ACT, 1869 
 MERSEY RIVER 
 
 Act for preventing collisions in 
 
 MONEY ORDERS 
 
 MISCONDUCT— See Masters, Seamen, Passengers. 
 
 MORTGAGE— See British S'Ayj. 
 form of 
 
 registry of 
 
 certificate of... 
 
 priority of . . . 
 
 certiticates of ... 
 
 transfer of 
 
 entry of discharge of ... 
 
 power of Court of Admiralty over 
 
 MORTGAGEE OF SHIP 
 
 rights and liabilities of 
 
 declaration where his interest taken by transmission 
 
 not deemed owner except, &c 
 
 may take possession 
 
 when entitled to freight 
 
 power of sale 
 
 accounts between, and master 
 
 jurisdiction of Coiu-t of Admiralty over 
 
 bankruptcy of 
 
 MORTGAGOR OF SHIP 
 
 authority of 
 
 bankruptcy of, effect of 
 
 PAGE 
 ... 926 
 
 ... 927 
 
 ... 884 
 
 ... 899 
 ,., 96G 
 
 49, 648, 
 
 
 778 
 
 
 49, 
 
 649 
 
 
 650, 
 
 780 
 
 
 49, 
 
 649 
 
 . .. 
 
 50, 
 
 650 
 
 
 50, 
 
 649 
 
 "so, 
 
 649, 
 
 784 
 
 50, 
 
 618, 
 
 843 
 22 
 
 
 649, 
 
 780 
 
 .'.'.' 22 
 
 1,49, 
 
 649 
 23 
 
 23 
 
 ... 
 
 24, 
 
 649 
 
 24 
 
 '.'.'. 24 
 
 ,50, 
 
 618 
 649 
 
 24 
 
 ... 
 
 649, 
 
 650 
 
 N. 
 
 NAME OF SHIP 
 
 rules as to 
 
 to be painted on registered ships... 
 
 on boats belonging to ships ... 
 
 not to be changed 
 
 NATIONAL CHARACTER OF SHIP 
 provisions respecting it 
 
 NAVAL COURTS 
 
 survey of ships by . . . 
 power of seamen to summon 
 
 NAVAL OFFICERS 
 
 entitled to salvage, when 
 
 NAVAL PRIZE ACT— See Pn,-.'e ... 
 
 887 
 44 
 55 
 
 44 
 
 ... 655 
 
 Jo, 693, 800 
 ... 889 
 ... 957 
 
 ... 550 
 ... vi
 
 INDEX. 
 
 NAVAL RESERVE page 
 
 notice as to 965 
 
 qualifications of 965 
 
 advantages of ... ... ... 965 
 
 obligations of ... 966 
 
 NAVIGATION 
 
 statutes relating thereto •. 38 
 
 seamen volunteering into 682 
 
 salvage by ships of ... ... 550 
 
 NECESSARIES FOR SHIP— See Repairs. 
 
 who liable for 20,21,91 
 
 no maritime lien for 100 
 
 supplied to foreign ships 103 
 
 action for, when supplied in port to which ship does not belong ... 104 
 
 claims for, Admiralty jurisdiction 842 
 
 county courts jurisdiction ... .; 880 
 
 NECESSITY 
 
 Avhat, authorises sale by master 5 
 
 NEUTRAL PORT 
 
 condemnation of ship as i^rize in IS 
 
 NEWCASTLE AND HULL 
 
 appointment of sub- commissioners of pilotage by Trinity Houses of... 721 
 
 NORTH AMERICA 
 
 definition of, in Passengers Act, 1855 803 
 
 NOTARY PUBLIC 
 
 protests of masters drawn up by them 325 
 
 copies of contracts attested by them not evidence of originals ... 325 
 
 NOTICE 
 
 by o^\-ner3 to discharge their liability, ejffect thereof 284 
 
 of loss ot ship 47 
 
 NOTICE TO PRODUCE 
 
 when seaman may prove agreement without giving 669 
 
 NUMBER OF SHIP 
 
 where to be cut in 892 
 
 o. 
 
 OFFENCES— See Seamen, Master, Pilots. 
 
 mode of punishment of, imder M. S. Act, 1854 
 entry of, in official log 
 
 in re.spect of -wTeck 
 
 stealing from ... 
 jurisdiction in case of, on board ship and abroad 
 xmder Passengers Act, 1655, mode of proceeding 
 in territorial waters 
 
 OFFICIAL LOG— See loi/ IJoo/; 
 
 748 
 
 ... 690, 700 
 
 739 
 
 7397? 
 
 694, 800, 879 
 
 826 
 
 918 
 
 700
 
 INDEX. 
 
 OLERON PAGE 
 laAvs o( iv 
 
 ORDERS IN COUNCIL 
 
 pro\iBion as to ... ... ... ... 913 
 
 OVERLOADING 
 
 .ship, provisions as to 900,903 
 
 OWNERS OF SHIPS— See Part-owners, British Shi2JS. 
 
 of British sliips, who may be ... .. ... 41 
 
 no more than 64 persons to be owners at one time of a siiip 43, 925 
 
 ow'ner.ship, how acquired ... ... ...• ... ... ... ... 1 
 
 by building and purchase ... 2 
 
 by bill of sale— see £?-i<i*7i (SViij; 2,47 
 
 by agreement for building ... ... ... ... ... ... 2 
 
 by capture and condemnation ... ... ... ... ... 16 
 
 what liabilities attached to — see Liability — Collision 20 — 37 
 
 of the liability of charterers and owners pro tempore ... 21, 25 
 
 whether mortgagee liable as o-nmer — see Mortgagee 22 
 
 answerable on the contract of the master as to the employment 
 
 of the ship, &c. — see Master 83 
 
 of a general ship 254 
 
 as to repair.s, &c 21,25,91 
 
 on their contract with the mariners and pilot 92 
 
 as to money borrowed — see Bottomry ... ... ... ... 92 
 
 limitation of their liability in certain cases — see Limitation of Lia- 
 bility ... ... ... ... ... ... ... ... ... 338 
 
 P. 
 
 PAPERS 
 
 ship's, what 296 
 
 PAROL EVIDENCE 
 
 as to party signing charter-party being agen t 178 
 
 PARTICULAR AVERAGE 497n 
 
 PART OWNERS OF A SHIP 
 
 number of 925 
 
 are tenants in common 57 
 
 not in general partners G2n 
 
 theirremedies again-st each other 59 
 
 power of Court of Admiralty to decide questions between ... 59 
 
 foreign laws as to their disagreement 58 
 
 employment of ship (in case of disagreement of) 59 
 
 authority of Court of Admiralty 59 
 
 co-o^\^lers, when, liable on order of one for repairs. Sec. ... 61, 70 
 
 •ship's husband 62 
 
 admission of one, w'hen binding on the other 62 
 
 bankruptcy of one, effect of ... ... ... ... ... ... 64 
 
 settlement of account between 68 
 
 actions by, for wrong or negligence of .stranger 69 
 
 who to sue or be sued ... ... ... ... ... ... 70 
 
 actions against part-owners ... 70
 
 INDEX. 
 
 PASSAGE BROKERS PAGE 
 
 regulations respecting tliem . . , , , . . . , . . , , , , . , , 822 
 
 bond of ... ., 835 
 
 license of ... ... ... ... ... ... ... ... ... 836 
 
 notice for 836,837 
 
 notice of forfeiture of 837 
 
 appointment of agent , , , 837 
 
 PASSAGE, COURT OP 
 
 jurisdiction of yiii, 882, 886 
 
 PASSENGER — See Passenrjer Acts — Passenger Steamers. 
 
 of the rights and duties of the master and passengers , ,,, 161 
 
 contracts for the conveyance of passengers, and cases decided upon 
 
 them ... " 162 
 
 fonn of contract ticket 838,839 
 
 accidents and misconduct on passenger ships , 169, 707, 852 
 
 taking charge of ship in distress, when entitled to remuneration ... 162 
 
 no freight for infant born during voyage 350 
 
 goods of, contribixte to general average 527 
 
 luggage of, subject to master's lien for passage money 166 
 
 but not the clothes worn by, when leaving vessel 166 
 
 legislative provisions respecting 166 
 
 secreting himself on ship . , . 692, 869 
 
 list of jjassengers when evidence 859 
 
 how to be dealt with where shipwrecked 871 
 
 rights of in case of collision 592>i 
 
 suggestions to masters ot emigrant ships as to boats and fire at sea ... 170 
 
 PASSENGERS' ACT, 1855. 
 
 prefaratory clauses 802 
 
 definitions 802 
 
 who to carry act into execution 804 
 
 arrangements of the ship 805 
 
 lists of passengers 806,830,869 
 
 arrangement of berths 807 
 
 light and ventilation 808 
 
 to carry boats according to tonnage 808 
 
 life boat and life buoj's 809 
 
 computation of voyages 810 
 
 survey of water and pro\dsions... , ...812 
 
 water tanks or casks to be approved 812 
 
 dietary scale 313, 870 
 
 passengers' steward and cook 815 
 
 medical men 816 
 
 supply of medicines 816, 870 
 
 inspection of passengers and medicines 817 
 
 re-landing of sick passengers 817, 870 
 
 passengers' rights 817 
 
 return of passage money to passengers relanded, &c 817 
 
 subsistence of, in case of 817, 818 
 
 in case of ship putting back to replenish 818 
 
 providing passages for in case of shipwreck 819 
 
 miscellaneous provisions 819 
 
 procedure for penalties 825 
 
 passage brokers ... ... ... ... ... ... ... ... 822 
 
 to apply to colonial voj^ages, how far 828 
 
 schedule 830 
 
 PASSENGERS' ACT AMENDMENT ACT, 1863 869
 
 INDEX. 
 
 PASSENGER SHIP 
 construction of 
 definition of 
 
 carriage of horses and cattle in ... 
 clearance of... 
 in case of wreck of, liow passengers to be dealt with ... 
 
 PASSENGER STEAMERS— See Steam Ships. 
 
 Definition of in M. S. Act, 1854 
 
 insj^ection of 
 
 survey of — See Survey 
 
 shelter for deck passengers 
 
 signals of distress lights, &c., in ... 
 
 misconduct by passengers in 
 
 penalty for carrying excessive number of passengers ... 
 accidents to be reported to Board of Trade . . . _ 
 notice to be given of ai^prehended loss of steam ships . . . 
 
 collisions to be entered in official log 
 
 mail ... 
 
 appeal on refusal of certain certificates 
 
 PASSPORT 
 
 required during war 
 
 PENALTIES— See Pilots—Master— Seamen, djc, d-c. 
 
 mode of recovering under M. S. Act, 1854 
 
 api)lication of 
 
 PERILS OF THE SEA 
 
 what are _ 
 
 liow questions relating to ihem are to be decided 
 
 PETROLEUM 
 
 notice when ship carries 
 
 PIEES 
 
 ships doing injury to 
 
 PILOT BOATS 
 
 PILOTS 
 
 meaning of in M. S. Acts 
 
 of Cinque Ports 
 
 signalling for •••. 
 
 implied contract between, and owner of ship 
 
 flags of 
 
 pilotage authorities — 
 
 powers of, &c 
 
 Trinity House _ 
 
 power to appoint sub commissioners 
 
 general power of 
 
 Cinque Ports 
 
 returns by 
 
 arranging limits of 
 
 transfer of jurisdiction 
 
 licenses of . . . ... • • . • • • 
 
 special sea 
 
 of masters and mates... 
 rights, privileges, and remuneration of 
 
 Trinity House pilots may pilot ships inwards wiihin 
 of their licenses 
 
 reducing rates of pilotage 
 
 rates of pilots (Trinity House) 
 
 O U 
 
 PAGE 
 
 807, 808 
 
 ... 869 
 
 ... 869 
 ... 870 
 ... 871 
 
 ... 704 
 
 ... 635 
 
 ... 704 
 
 ... 703 
 
 ... 906 
 
 707, 852 
 
 ... 707 
 
 ... 708 
 
 ... 708 
 
 ... 708 
 
 ... 869 
 
 890, 903, 905 
 
 29Qn 
 
 
 ... 748 
 
 ... 
 
 ... 750 
 
 
 ... 329 
 
 
 ... 329 
 
 ... 
 
 287, 321 
 
 ... 
 
 ... 593 
 
 
 ... 713 
 
 . .. 
 
 148, 709 
 
 
 ... 148 
 
 
 ... 627 
 
 ... 
 
 158, 895 
 
 • .. 
 
 ... 158 
 
 
 ... 713 
 
 149, 
 
 150, 709 
 
 149, 
 
 717, 721 
 
 ... 
 
 717, 721 
 
 
 ... 717 
 
 ... 
 
 ... 150 
 
 
 ... 710 
 
 
 ... 853 
 
 
 ... 853 
 
 713, 
 
 718, 854 
 
 • . . 
 
 ... 891 
 
 
 ... 711 
 
 *628, 
 
 715, 788 
 
 the limits 
 
 
 ... 628 
 
 853, 
 
 854, 890 
 
 ... 
 
 720, 890
 
 INDEX. 
 
 Pilots — continued. 
 
 rights, privileges, and remuneration of — continncfl. 
 
 recovery of nxtes 
 
 pilot fund (Trinity House) 
 
 remuneration for salvage services 
 
 of Cinque Port pilots 
 
 compulsory pilotage 
 
 Avhen compulsory 
 
 power to exemjit from 
 
 what ships need not take pilot 
 
 for foreign ships 
 
 Trinity House 
 
 exemption of owners from liability, when ... 
 offences of 
 
 mode of procedure in certain criminal cases 
 pilots' fund — 
 
 Bristol Channel 
 
 Trinity House 
 
 Cinque Port pilots claim on 
 
 PIRATES 
 
 capture bj' 
 
 shipowner not liable for robbery by 
 
 master resisting 
 
 master and seamen turning 
 
 seamen disabled in fight with 
 
 forfeiture of seamen's wages, for not resisting ... 
 
 salvage when ship found in possession of 
 
 PLATE 
 
 quality and value of, to be expressed in bill of lading, 
 contributes to general average 
 
 POOR RATES 
 
 relief to seaman's family out of 
 
 PORT CHARGES 
 
 to be paid by master 
 
 enactment as to exemption from 
 
 PRACTITIONERS, MEDICAL 
 
 what ships to have on board 
 
 PRATIQUE 
 
 PRIMAGE 
 
 PRINCES 
 
 restraint of, what such as to excirse 
 
 PRIZE— See (7ft2Ji)«-e 
 
 Act relating to 
 ransoming ... 
 salvage of 
 
 PRIZE SHIPS 
 registry thereof 
 jurisdiction of Admiralty in cases of 
 
 PROCEDURE 
 
 under M. S. Act, 1854 
 
 in certain criminal cases ... 
 
 by Board of Trade 
 
 PAGE 
 
 854 
 
 721 
 
 149, 548, 550, 558 
 ... 627, 890 
 155, 714, 719 
 
 155 
 
 ... 853, 854 
 ... 156, 855 
 
 160 
 
 719 
 
 ... 159, 855 
 ... 158, 716 
 794 
 
 855 
 
 629 
 
 629 
 
 ... 19 
 
 ... 330 
 
 139, 309 
 
 ... 139 
 
 ... 141 
 
 ... 487 
 
 ... 572 
 
 341 
 
 527 
 
 ... 674 
 
 ... 298 
 ... 298 
 
 ... 143 
 
 ... 185 
 
 ... 345 
 
 ... 334 
 
 ... 17 
 
 vi, I6n 
 ... 20 
 ... 571 
 
 ... 44 
 
 vi, 16 
 
 ... 748 
 ... 794 
 ... 860
 
 INDEX. 
 
 PROPERTY IN BRITISH SHIPS page 
 
 wlien it jmsses on contract to build 2 
 
 transferor — Hee British Shii) 47 
 
 PROTECTION OF SEAMEN 
 
 from imposition 141,457,878 
 
 PROTEST 
 
 by master 325 
 
 forms ol 980,986 
 
 PROVISIONS 
 
 disposal of ship's, foreign ordinances as to 130 
 
 for seamen — Hee Seamen 143, 68-4 
 
 for passenger ships 812, 814 e< ser/, 830 
 
 PURCHASE 
 
 title to ship by 1 
 
 QUALIFICATIONS 
 
 of masters and mates, &c. — See Alaster and Mates 76 
 
 of engineers — See Engineers ... ... ... ... ... ... 80 
 
 of mariners— See /S'e«?Ht)i- 81 
 
 QUARANTINE 
 
 package and care of goods during 325 
 
 pratique, what 185 
 
 R. 
 
 RANSOM — See Average, General 
 
 ofprizes , 20 
 
 RATES— See Dues. 
 
 tonnage, under local Acts may be levied on registered tonnage ... 846 
 
 RATING 
 
 ofseamen ... 923 
 
 RATS 
 
 damage to cargo by 316, 333 
 
 RECAPTURE 
 
 salvage thereon 567 
 
 payment of freight thereon 399 
 
 RECEIPT FOR GOODS 
 
 usual for master to sign ... ... ... ... ... ... ... 257 
 
 and he should take care that it is returned before he signs the bill 
 
 oflading 286 
 
 RECEIVER-GENERAL OF DROITS 794 
 
 RECEIVERS OF DROITS 
 
 instructions as to apportionment of salvage ... ... ... ... 929 
 
 RECEIVERS OF WRECKS, &c. 
 
 their appointments and duties — See Wrecks, Casualties, and Salvage 731, 794 
 
 for salvage purposes 559 
 
 payment of certain... ... ... ... ... ... ... ... 794 
 
 mav appoint a valuer 857 
 
 3 u 2
 
 INDEX. 
 
 EEFEREES page 
 
 scientific ... ... ... ... . . • ... • • • • • • • • • 904 
 
 EEGISTRAR-GENERAL OF SHIPPING AND SEAMEN ... 690, 890 
 
 transfer to, of duties as to registry of ships 889 
 
 ti-ansmission of documents to C99 
 
 duties of, as to certificates ■•• 663 
 
 REGISTRATION OF AND RETURNS 
 
 respecting seamen 145,697 
 
 REGISTRY OF BRITISH SRlV—^ee British Shirs ... 41,637,799,889 
 
 certificate of registry 46^044,766 
 
 registry anew, and transfer of registry 52,652 
 
 of mortgages 49,649 
 
 at foreign jiorts ... ... ... ... ... ... ... ... 896 
 
 in the colonies — See Colonies. 
 
 transcript of register for transmission to registrar-general of shipping 
 and seamen 931 
 
 REGULATIONS 
 
 for maintaining disciiDline, sanctioned by Board of Trade 938 
 
 RELIEF TO SEAMEN'S FAMILIES 
 
 out of poor rates 674 
 
 REMITTANCE OF SEAMEN'S WAGES 672 
 
 REMOVAL OF WRECKS ACT, 1877 916 
 
 REPAIRS OF SHIP— See Lien. 
 
 liability of owner for 20,90 
 
 charterer for 21 
 
 partners ... ... ... ... ... ... ... 61, 70 
 
 lien for ... ... ... ... ... ... ... ... ... 99 
 
 actions, in rem ioT ... ... ... ... ... ... ... ... 102 
 
 hypothecating ship for 104 
 
 master's authority to order 90 
 
 when a subject of general average, and when not 510 
 
 REPORT 
 
 of ship, when and how made 319 
 
 bulk not to be brolien within four leagues of coast, until made ... 321 
 
 RESERVE 
 
 persons may be accepted to serve as officers of 892 
 
 RESPONDENTIA 121,978 
 
 RESTRAINT OF PRINCES 
 
 what such as to excuse 334 
 
 RETURNS 
 
 by pilotage authorities ... ... ... ... ... ... ... 710 
 
 to 3oard of Trade 635 
 
 respecting seamen ... ... ... ... ... ... ... ... 697 
 
 REVENUE OFFICERS 
 
 their authority and duty with resjiect to ships in distress 731 
 
 REVOCATION 
 
 784
 
 IXDEX. 
 
 RIVEES PAGE 
 lights, &c., in 851 
 
 ROBBERS 
 
 meaning of, in. bill of lading 334 
 
 ROBBERY 
 
 master and owners, liability for 286,334,341 
 
 when committed by pirates at sea ... ... ... ... ... 330 
 
 liability of owners as to amount 341 
 
 ROCCUS V 
 
 RUN'NER— See Passage Broker and Passengers Acts — Emigration. 
 
 s. 
 
 SALE 
 
 of British ships — See British ShiiJS. 
 
 form of bill of, of ship 768 
 
 of cargo by master... ... ... ... ... ,.. ... ... 310 
 
 of goods, while yet at sea 416 
 
 for salvage — See Salvage. 
 
 SALVAGE — See Wrecks, Casualties and Salvage. 
 
 of salvage generally ... ... ... ... ... ... ... 536 
 
 at common law ... ... ... ... ... ... ... 537 
 
 the jurisdiction of the High Court of Admiralty in cases of salvage 
 
 of ships in distress at sea ... ... ... ... ... 539 
 
 rates of salvage awarded by 540 
 
 in case of derelict... 544,744 
 
 must be beneficial ... ... ... ... ... ... ... ... 546 
 
 salvors need not remain on board ... ... ... ... ... 546 
 
 how value of property salved to be ascertained ... ... ... 546 
 
 where part-owner of salvage ship has interest in shiji salved... ... 546 
 
 where other salvors ... ... ... ... ... ... ... 546 
 
 of salvage by chartered ships ; salvage agreements ; salvage between 
 ships belonging to the same owners, or engaged as consorts in the 
 same adventure ; salvage by persons employed to render other 
 than sah'age service ; salvage of ships damaged hy collision with 
 the ships of those claiming from them salvage remunei\ation ; 
 
 salvage by licensed pilots 547 
 
 where ship chartered ... ... ... ... ... ... ... 547 
 
 when seamen entitled to ... ... ... ... ... ... 547,673 
 
 when ships sail as coiLSorts ... ... ... ... ... ... 547 
 
 agreement for salvage service ... ... ... ... ... 547, 849 
 
 Avhen pilots entitled to ... ... ... ... ... ... ... 548 
 
 when tug entitled to from tow ... ... ... ... ... ... 549 
 
 transport injured in execi;ti on of service ... ... ... ... 549 
 
 where part of crew mutiny ... ... ... ... ... ... 549 
 
 colliding vessels ... ... ... ... ... ... ... ... 550 
 
 by crews of the Eoj-al navy 550,741 
 
 aj)portionment of salvage reward among those engaged in salvage 
 
 service ... ... ... ... ... ... ... 551, 736 
 
 instructions from Board of Trade to receivers of Admiralty droits 
 
 as to apportionment ... ... ... ... ... ... 929 
 
 of life 556,735,843 
 
 by whom and in respect of Avhat interest salvage payable 557 
 
 proceedings in Admiralty... ... ... ... ... 559,743,843 
 
 jurisdiction of county courts ... ... ... ... ... ... 880 
 
 aj^pointment and duties of receivers 559, 731, 794, 857
 
 INDEX. 
 
 Salvage — continued. page 
 
 ■where salvage services rendered in tlic U. K. — See JVrcck, Casualties 
 and Salvafje 
 
 jurisdiction of justices 
 
 apportionment of salvage 
 
 selling for 
 
 "UTeck ... 
 ■\vitldn tlie jurisdiction of Cincj^iie ports ... 
 on recapture 
 
 Naval Prize Act, 1864 
 
 where ship, &c., found in possession of pirates 
 lien for — See Maritime Lien — Lien 
 
 seaman abandoning 
 
 freight, "when liable for ... 
 
 master's duty as to rendering salvage services 
 
 SALVOR 
 
 a volunteer assisting ship in distress 
 
 officers and crew of distressed ship cannot in general be 
 
 SAVINGS' BANKS 
 
 for seamen 
 
 561, 735, 
 ... 563, 
 
 565, 
 
 564, 730, 
 
 565, 611, 735, 
 
 537, 
 
 734 
 856 
 736 
 737 
 737 
 794 
 567 
 571 
 572 
 595 
 673 
 557 
 550 
 
 538 
 538 
 
 J 
 
 SCIENTIFIC REFEREES 
 
 SCOTLAND 
 
 legal procedure under M. S. Act, 1854, in 
 salvage in . . . 
 
 application of M. S. A., 1876, to 
 
 lighthouses in 
 
 inquiry in, as to wrecks, &c 
 
 SEAMEN— See Crew—Biscixiline. 
 
 definition of, in M. S. A., 1854 
 
 qualifications of 
 
 rating of 
 
 offices for registries of, and persons licensed to engage — 
 
 offices for registries ... 
 
 persons authorized to prociu'e 
 
 penalty for receiving remuneration for shipping ... 
 agreements with ' ... 
 
 to contain certain particulars 666, 
 
 implied obligation as to seaworthiness 
 
 signature and attestation of 
 
 to be signed in duplicate ... 
 
 l)ro\dsion for substitutes 
 
 running 
 
 time 
 
 in case of home-trade ships, how to be entered into 
 
 where entered into in colonies or abroad 
 
 "with fishermen 
 
 672, 800, 967 
 904 
 
 751, 753 
 ... 753 
 ... 914 
 ... 722 
 ... 731 
 
 633 
 
 81, 82 
 923 
 
 661 
 
 .. 144, 461 
 .. 144, 666 
 
 451 
 
 893, 908, 939 
 
 900 
 
 .. 452, 666 
 
 666 
 
 666 
 
 667 
 
 891 
 
 667 
 
 668 
 
 893 
 
 penalty for shipping seamen without agreement duly executed 455, 667 
 
 verbal, not void 459 
 
 form of, sanctioned by Board of Trade 934 
 
 office copy of, for transmission to registrar-general of shipping 
 
 and seamen 942 
 
 half-yearly agreement for home-trade ships, form of 946 
 
 copy of, accessible to crew 455, 669, 954 
 
 stamp on ... ... ... ... ... ... ... ... 455 
 
 erasures and alterations in 669 
 
 e"vidence of, when proved by seamen 669 
 
 changes in, crew to be reported 668 
 
 power of court to rescind agreement 923
 
 INDEX. 
 
 Seamen — continued. fAGE 
 
 agreements with — cmitinued. 
 
 on ship's arrival at foreign port, agreement with crew to be de- 
 posited with consular officer ... ... ... ... ... 699 
 
 on foreign-going ships' arrival at port in U. K., agreement to be 
 
 delivered to a superintendent of a mercantile marine office 699 
 rules as to production and transmission of agreements for home- 
 trade ships 669 
 
 discharge of — 
 
 before commencement of voyage ... ... ... ... ••• 669 
 
 duties to be performed on ... ... ... ... ... . • • -155 
 
 from foreign-going ship, to be made before a superintendent of a 
 
 mercantile marine office ... ... ... ... ••• 670 
 
 master to deliver account of wages ... ... ... ... • • • 670 
 
 to give certificate of ... ... ... ... ..• _ ••• 671 
 
 superintendent of mercantile marine office may decide c[uestions 
 
 referred to him ... 671 
 
 settlement of wages — See infra ... ... ... ... ... 671 
 
 on, master to make reports of character ... ... ... ... 672 
 
 form of certificate of, when not discharged before superintendent 
 
 of a mercantile marine office ... ... ... ... • • • 963 
 
 Avhere running agreement in case of foreign-going sliips... ... 667 
 
 abroad, on sale of ship, &c. ... ... ... ... ... 679,680 
 
 wages of 463,673 
 
 when they commence ... ... ... ... ... ••• 673 
 
 when whole wages to be paid ... ... ... ... • • • 463 
 
 when part only '**^'*' ^^? 
 
 not dependent on earning of freight 464,673 
 
 not entitled to increased remuneration for extraordinary service 4.59 
 
 divided voyages 465 
 
 when seaman impressed ... ... ... ... ... ... 467 
 
 he enters Eoyal Navy ... ... ... ... . • • . • . 468 
 
 heisiU 686,877 
 
 he dies 468,673,675 
 
 ship captured ... ... ... ... ... ... ••. 478 
 
 entry of amount due on death to be made in official log 70l 
 
 not to accrue during refusal to work or imprisonment 673 
 
 sale of and charge on, invalid 686 
 
 account ot, form of ... ... ... ... ... ... • • • 964 
 
 subj ect of general average ... ... ... ... ... ... 528 
 
 earned by a woman ... ... ... ... ... ... 464, 6.33 
 
 effect of embargo on .. . ... ... ... ... .•• 464,478 
 
 ship lost or seaman left on shore 469, 673, 680, 849 
 
 voyage abandoned ... ... ... ... ... . • . ... 4 / 1 
 
 generally not payable unless voj^age ]»erformed 477,691 
 
 amount of, how" ascertained under M. 8. Act, 1^54, Avlieu con- 
 tract for a voyage and not by time ... ... ... ... 690 
 
 forfeiture of wages 4/( 
 
 entry of, in official log ... ... ... ... . • • . . . / 00 
 
 where capture and recapture of ship ... ... ... ... 478 
 
 by desertion 134,481,689,691 
 
 may be waived 484 
 
 general rule of law as to ... ... ... ... . • • • • • 485 
 
 for wilful neglect of duty 135,487,673 
 
 when illness caused by his own default ... ... ... .•• 877 
 
 for not defending sliip against pirates 487 
 
 by embezzlement ... ... ... ... ... ••. ••• 487 
 
 power of naval courts to declare ... ... ... • • ■ • • • 693 
 
 deduction of forfeiture from wages 691,692 
 
 payment of wages ... ... ... ... ... . • • . • • ^. . 6 / 
 
 when and how to be made ... ... ... .•• 471,673,922 
 
 in U. K. in case of foreign-going ships 222, 670, 671
 
 INDEX. 
 
 Seamen — continued. page 
 
 payment of wages — continued. 
 
 release how to be signed and attested 671 
 
 superintendent of mercantile marine office, deciding, respecting 671, 922 
 
 when seamen left abroad on ground of inability 680,849 
 
 advance and allotment notes 474, 670 
 
 form of 962 
 
 conditional on going to sea, illegal 922 
 
 remittance of wages ... ... ... ... ... ... ... 672 
 
 fines may be deducted from 692 
 
 of deceased seamen 475,673,675—679,849 
 
 remedies to recover wages 489 
 
 former law 489 
 
 present law 492,674 
 
 statute of limitation 493 
 
 proof of agreement 493,669 
 
 action at common law 493 
 
 jurisdiction of Admiralty— See Admiralty 674, 843 
 
 jiirisdiction of County Courts— See County Courts. 
 
 jiroceedings before magistrates ... ... " ... ... ... 493 
 
 deducting costs of procuring imprisonment from wages 691 
 
 deducting fines from wages ... ... ... ... ... ... 692 
 
 question as to forfeiture of wages may be decided in suits for ... 692 
 
 action not to be brought abroad except, &c. ... 674 
 
 when seaman lost with ship ... ... ... ... ... ... 849 
 
 lien for — See Maritime Lien — Lien. 
 
 behaviour of — See infra, Offences by 122 
 
 refusing to join ship ... ... ... ... ... ... ... 924 
 
 breach of ship's articles, what constitutes 130 
 
 drunkenness of 135 
 
 disobedience of, to lawful command 689 
 
 regulations for maintaining discipline 689,938 
 
 abstract of claiises as to 956 
 
 master's aiithority over 124 
 
 duties of — 
 
 must join his ship in due time 689 
 
 must assist in stowage and discharge of cargo 131 
 
 resisting pirates 139 
 
 in case of shipwreck 131 
 
 offences— See Offences 134, 689, 938 
 
 refusal of, to proceed to sea, absenting himself 134, 689 
 
 misconduct endangering shiji, &c 687 
 
 desertion — See Desertion of iieamen. 
 
 what may justify leaving .shi}) 132 
 
 giving false statement of last ship's name 692 
 
 turning pirate 139 
 
 barratry of ... 137 
 
 entry of in official log-book 129, 136, 690, 700 
 
 committed on the high seas or abroad, trial of ... ... ... 694 
 
 encouragement, protection, and jireservation of their health 141, 457, 878 
 l^rovision for, disabled in fight Avith pii'ates or enemies ... ... 141 
 
 not to give uji certain rights ... ... ... ... 673,849 
 
 provisions and medicines 143,684—686,958 
 
 accommodation for ... ... ... ... ... ... 144,878 
 
 power of making complaint 684,686,693,957 
 
 no debt above 55. to be sued for until service ended 687 
 
 penalty for detaining seamen's effects 144,687 
 
 effects of deceased seamen ... ... ... ... ..< ... 675 
 
 persons not to go on board before final arrival of ship ... 687, 923 
 overcharges and solicitations by lodging-house keepers ... 144, 687 
 exjsenses in case of illness by neglect of owner or master to be 
 paid by him 877
 
 INDEX. 
 
 Seamen — continued. 
 
 encouragement, protection, and preservation of their liealth- 
 
 leaving seamen abroad 
 
 in distress in this country 
 
 distressed seamen found abroad may be sent home 
 expense ... 
 
 extension of provisions concerning relief of 
 
 relief out of poor rates 
 
 inquiry into cause of death on board 
 
 wills of... 
 
 savings banks for 
 registration of and returns respecting 
 
 of births and deaths ... 
 volunteering into tlie navy 
 Merchant Sliipping Act, 1854, provisions in, respecting 
 
 engagement of . . . 
 
 allotment of wages ... ... ... 
 
 discharge and payment of wages ... 
 
 remittance of wages to and savings bank for 
 
 legal rights to wages ... ... ... 
 
 mode of receiving Avages 
 
 relief to seamen's families out of poor rates 
 
 wages and effects of deceased seamen 
 
 leaving seamen abroad ... ... 
 
 provisions, health, and accommodation 
 
 power of making complaint ... 
 
 protection of seamen from imposition 
 
 discipline of seamen ... 
 
 naval courts ... 
 
 crimes committed by, on the high seas and abroad 
 
 registration of, and returns respecting 
 
 official logs ... 
 
 East Indies and colonies ... • 
 
 SEAMEN'S FUND WINDING-UP ACT, 1851 
 mode of procedure in criminal cases 
 power to remit forfeiture of claim to fund 
 Section 43 to apply to masters 
 
 SEARCHER 
 
 under Customs Acts 
 
 SEAWORTHINESS— See Unscaicorthiims. 
 
 what is 
 
 master and owner, when answerable for the want of . 
 what is implied as to, in agreements with seamen 
 
 SERVICE 
 
 of summons, &c., under M. S. Acts 
 
 SESSION 
 
 Court of, jurisdiction in salvage cases ... ... 
 
 SET-OFF 
 
 alteration in law of 
 
 SHARES 
 
 in ships to be deemed stock within Trustee Act, 1850 
 
 SHIP— See British Shi^js. 
 
 unfinished, when vests in purchaser 
 
 admeasurement thereof for I'egistry ... 
 
 to be divided into shares ... 
 
 destroying of, &c 
 
 142, 
 
 
 PAGE 
 
 -cont 
 
 inued. 
 
 145 
 
 679, 
 
 682 
 795 
 
 at p 
 
 ublic 
 
 681 
 
 
 7119 
 
 850 
 674 
 696 
 
 677 
 
 "672 
 
 800 
 
 967 
 697 
 697 
 682 
 657 
 665 
 670 
 670 
 672 
 673 
 674 
 674 
 675 
 679 
 684 
 686 
 686 
 
 
 689 
 
 938 
 693 
 694 
 697 
 
 700 
 702 
 
 620 
 
 631 
 
 926 
 794 
 926 
 926 
 
 
 292 
 
 295 
 
 
 281- 
 
 -285 
 281 
 900 
 
 
 750 
 
 913 
 
 857 
 
 43, 799 
 
 42 
 925 
 138
 
 INDEX. 
 
 ... 920 
 ... 873 
 
 660, 848 
 
 660, 848 
 
 ... 452 
 
 ... 62 
 
 ... 296 
 671,692 
 
 ... 464 
 ... 871 
 
 99, 599 
 ... 2 
 
 ... 44 
 
 Ship — continued. page 
 
 iinderletting of 179 
 
 cleimse of, its effect 21, 25, 221, 239 
 
 jDroperty in, how proved 55 
 
 action t?i rem against — See Admiralty Court. 
 
 SHIP OWNER -See Briti'ih Ships— Oinur- Part Oivner. 
 SHIPPING CASUALTIES INVESTIGATIONS ACT, 1879 
 
 SHIPPING DUES EXEMPTION ACT, 1867 
 
 SHIPPING MASTERS 
 
 now tenued superintendents of mercantile marine offices 74, 
 
 SHIPPING OFFICES 
 
 now termed mercantile marine offices 74, 
 
 SHIP'S ARTICLES— See &«meji 
 
 QRIV'S nJlSBANB— See Husband of Ship 
 
 SHIPS PAPERS 
 
 production, &c., by master 
 
 SHIPWRECK— See Wreck 
 
 effect of, as to wages, &c.... 
 
 liow passengers to be dealt with in case of 
 
 SHIPWRIGHT 
 
 his lien on a ship... 
 
 when property in a ship passes from, to purchaser 
 to give certificate of the denomination, &c., of ship 
 
 SICKNESS 
 
 of seaman 
 
 effect thereof as to wages 
 
 SIGNALS 
 
 for pilots 
 
 of distress 
 
 fog 
 
 jjrivate 
 
 SLAVES 
 
 contributed to general average 
 
 SMUGGLING 
 
 punishment of seamen for 
 
 SPIRITS 
 
 sale of, to passengers 
 
 STAMPS 
 
 exemption from, of certain documents under M. S. Act, 1854 
 of passeugei's' contract tickets 
 
 STATUTES 
 
 1 & 2 Geo. 4, c. 76 (Act relating to the Cinque Ports) 
 
 4, c. 94 (Factors Act) 
 
 c. 56 (Act relating to Ships built in the East Indies, 
 c. 65 (Act relating to Court of Admiralty) 
 
 c. 39 (Factors Act) 
 
 c. 102 (Seamen's Fund Winding-up Act) 
 129 (Pilotage Act) 
 
 143 
 
 468 
 
 158, 895 
 
 895, 906 
 
 ... 587 
 
 ... 895 
 
 ... 527 
 ... 689 
 ... 821 
 
 634, 743 
 ... 823 
 
 6 Geo. 
 3 & 4 Vict. 
 3 & 4 Vict. 
 5 & 6 Vict. 
 14 & 15 Vict. 
 16 & 17 Vict. 
 
 16 & 17 Vict. c. 131 (M. S. Amendment Act) 
 
 17 & 18 Vict. c. 104 (M. S. Act, 1854) 
 
 17 & 18 Vict. c. 120 (M. S. Act Repeal Act, 1854) 
 
 ... 611 
 
 ... 614 
 
 &c.) 617 
 
 ... 617 
 
 ... 431 
 
 ... 620 
 
 ... 627 
 
 ... 631 
 
 ... 632 
 
 ... 793
 
 INDEX. 
 
 Statutes — conthmed. page 
 
 IS & 19 Vict. c. 91 (M. S. Act Amendment Act, 1855) 798 
 
 18 & 19 Vict. c. Ill (Act relating to Bills of Lading) 801 
 
 18 & 19 Vict. c. 119 (Passengers Act, 1855) 802 
 
 24 Vict. c. 10 (Admiralty Conrt Act, 1861) 842 
 
 25 & 26 Vict. c. 63 (M. S. Act Amendment Act, 1863) 846 
 
 26 & 27 Vict. c. 24 (Vice-Admiralty Courts Act, 1863) 865 
 
 26 & 27 Vict, c. 51 (Passengers Act Amendment Act, 1863) 869 
 
 30 & 31 Vict. c. 15 (Shijiping Dues Exemption Act, 1867) ... 298, 873 
 30 & 31 Vict. c. 45 (Vice- Admiralty Courts Act Amendment Act, 1867) 874 
 
 30 & 31 Vict. c. 124 (M. S. Act, 1867) 876 
 
 31 & 32 Vict. c. 71 (County Courts Admiralty Jurisdiction Act, 1868) 879 
 
 31 & 32 Vict. c. 129 (the Colonial Shipping Act, 1868) 884 
 
 32 Vict. c. 11 (M. S. Colonial Act, 1869) 884 
 
 32 & 33 Vict. c. 51 (County Courts Admiralty Jurisdiction Amend- 
 ment Act, 1869) 886 
 
 34 & 35 Vict. c. 110 (M. S. Act, 1871) 887 
 
 35 & 36 Vict. c. 73 (M. S. Act, 1872) 889 
 
 36 & 37 Vict. c. 85 (M. S. Act, 1873) 892 
 
 37 & 38 Vict. c. 52 (for preventing Collisions in the Eiver Mersey) ... 899 
 
 39 & 40 Vict. c. 80 (M. S. Act, 1876) 899 
 
 40 & 41 Vict, c, 16 (Eemoval of Wrecks Act, 1877) 916 
 
 40 & 41 Vict. c. 39 (Factors Act, 1877) 917 
 
 41 & 42 Vict. c. 73 (Territorial Waters Jurisdiction Act, 1878) ... 918 
 
 42 & 43 Vict. c. 72 (Shipping Casualties, &c., Act, 1879) 920 
 
 43 & 44 Vict. c. 16 (M. Seamen (Payment of Wages, &c.) Act, 1880) 921 
 43 & 44 Vict. c. 18 (M. S. Act (1854) Amendment Act, 1880) ... 925 
 
 43 & 44 Vict. c. 22 (M. S. (Fees and Expenses) Act, 1880) 926 
 
 43 & 44 Vict. c. 43 (M. S. (Carriage of Grain) Act, 1880) 927 
 
 STEAM SHIPS— See Passenger Steamers. 
 
 inspectors of 635 
 
 survey of 704 
 
 measurement of 640 
 
 certain, to carry certificated engineers 846 
 
 STEVEDORE 287?i 
 
 STOLEN 
 
 responsibility of owners and master when goods stolen ... 86, 334 
 
 STOPPAGE IN TRANSITU. 
 
 what it is 401 
 
 in Avhat cases generally goods may be stopped in transits 404 
 
 in cases of part j)ayment 408 
 
 not affected by usage of carriers to retain goods for general balance of 
 
 consignees 408 
 
 nor by foreign attachment 408 
 
 wdiere second vendee 414 
 
 by a party who has only a lien 408 
 
 when goods are deemed to be m frftiisii! it ... ... ... ... 409 
 
 where ship chartered by consignee ... ... ... ... 410 
 
 where goods taken out of possession of carrier before arrival ... 411 
 of goods in Queen's warehouse ... ... ... ... ... 411 
 
 where part of cargo delivered 412 
 
 when in custody of warehouseman 410,413 
 
 how right of, to be exercised ... 415 
 
 masters duty where conflicting claims 425 
 
 delivery by mistake after .. . ... ... ... ... ... ... 413 
 
 by wdiat acts the right of a vendor may be taken away ... ... 416 
 
 by assignment of bill of lading 416,426 
 
 elTect of 405 
 
 of the Factors Acts 426
 
 PAGE 
 
 3, 
 
 341 
 
 
 286 
 
 9()6, 
 
 927 
 
 ... 
 
 906 
 
 ... 
 
 810 
 
 692, 
 
 869 
 
 ... 
 
 507 
 
 INDEX. 
 
 STORES— See Marine Stores. 
 
 ■v\hen fishing stores part of tlie sliip 
 
 STOWAGE 
 
 duties of owners and master as to 
 
 of grain cargoes 
 
 of deck cargoes 
 
 in passenger ships ... 
 
 STOWAWAYS 
 
 STEANDING OF SHIP 
 
 SUMMONS 
 
 of a witness, form of under Passengers Act 840 
 
 SUPERINTENDENT OF A MERCANTILE MARINE OFFICE— 
 See Mercantile Marine Offices. 
 
 general business of 661 
 
 power to insjiect documents and muster crews 635 
 
 duties as to apprenticeshij)s 664 
 
 agi-eements with, and shipping and discharge, and wages of 
 seamen — See Seamen. 
 
 remitting wages of seamen by money orders 672 
 
 to inquire into death on board ship 696 
 
 SURVEY 
 
 of ship liefore registry ... ... ... ... ... ... ... 642 
 
 under M. S. Acts 755 
 
 bj^ whom to be made 891 
 
 of passenger steamers 704,852,890,905 
 
 of passenger ships ... ... ... ... ... ... ... ... 807 
 
 in colonies ... ... ... ... ... ... ... ... 829 
 
 court of, constitution of ... ... ... ... ... ... ... 901 
 
 power and procedure of ... ... ... ... ... 901, 902 
 
 ^ apj)eal to, on refusal of certain certiticates 903 
 
 when mattei'S to be determined by scientific referees, and not by 
 
 court of 905 
 
 costs and damages 902 
 
 SURVEYORS 
 
 under M. S. Acts, sahuies, &c., of 704,914 
 
 by what, duties as to survey and measurement of shijis to be 
 
 performed 891 
 
 how duties of, as to passeuger steamer, &c., to be performed 704 
 
 T. 
 
 TACKLE, APPAREL, FURNITURE 
 
 whether part of ship 3 
 
 TERRITORIAL WATERS JURISDICTION ACT, 1878 918 
 
 THAMES 
 
 rules as to navigation of 581?i 
 
 TIMBER 
 
 not to be carried on deck in whiter 907 
 
 TOLLS 
 
 act as to exem]3tion from ... 298 
 
 TONNAGE -See Measurement of Tonnarje. 
 
 method of ascertaining it 42, 637 
 
 rates under local Acts may be levied on registered tonnage 846
 
 • INDEX. 
 
 TOTAL LOSS page 
 
 within policy of insurance on ship, what 8 
 
 wliere master luiaLle to repair lor want of money or credit 8 
 
 within the meaning of a bottomry bond, cannot happen if the ship 
 
 exists in specie ... ... ... ... ... ... ... 105 
 
 TKANSFERS AND TRANSMISSIONS— See Z?n«is7i /S/uiJs .. 47,646 
 form of V68 
 
 TRANSIEE 
 
 what and when to be granted 294 
 
 not to be granted nntil nation of ship declared 04 
 
 TRANSIT— See Stopixirje in Transitu. 
 
 TRANS-SHIPMENT— See Freight— Canjo- -Master. 
 
 right of owner to trans-ship, when ... .., ... ... ... 313 
 
 when fuU amount of freight recoverable after 390 
 
 TRINITY HOUSE— See Pilots. 
 
 power of ... ... ... ... ... ... ... ... ... 717 
 
 pilotage under 149 
 
 TUG 
 
 when entitled to salvage from tow 549 
 
 liahility of, in case of collision 592 
 
 u. 
 
 UNSEAWORTHY SHIPS— See Seauwr thin ess 
 sending to sea, a misdemeanor 
 obligation of sliipowner to crew . . . 
 power to detain 
 survey of ships alleged to be 
 
 by naval court 
 ship becoming, during voyage 
 
 ... 900 
 
 ... 900 
 
 900-903 
 
 ... 888 
 
 ... 889 
 
 309, 888 
 
 V. 
 
 VICE- AD:\IIRALTY- see Admiralty. 
 jurisdiction of 
 
 in collision cases ... ... 
 
 VICE- ADMIRALTY COURTS ACT, 1863 
 
 Amendment Act, 1867 
 
 prize court 
 
 VICTUALLING BILL 
 
 what 
 
 VOLUNTEERING INTO THE NAVY 
 
 VOYAGE— See Master. 
 preparation for 
 
 commencement of 
 
 of the course of ... 
 
 should proceed on, without delay or deviation 
 
 master's duty as to cargo on . . . 
 
 resisting enemies and pirates 
 
 duty of master when sliip becomes unseaworthy 
 completion of voyage 
 
 Customs Act 
 
 •.. ... 
 
 .. viu 
 
 
 
 .. 581 
 
 ... ... 
 
 .. 865 
 
 ... 
 
 .. 874 
 
 
 
 .. vi 
 
 289, .291 
 
 682 
 
 281 
 
 
 .. 297 
 
 
 .. 281 
 
 
 .. 306 
 
 
 .. 310 
 
 
 .. 309 
 
 
 .. 309 
 
 
 .. 317 
 
 , ,. , ,, 
 
 .. 318
 
 INDEX. 
 
 Voyage — continued. page 
 
 "colonial voyage," meaning of, in Passengers Act, 1855 828 
 
 for what, seamen are hired, to be mentioned in agreement 452 
 
 computation of, for passenger ships 81(», 811 
 
 account of, of home-trade ship, form of 972 
 
 w. 
 
 WAGES— See Seamen —Master. 
 
 WAGES AND EFFECTS OF DECEASED SEAMEN— See Seamen ... 675 
 
 WAEEHOUSEMAN 
 
 stoppage m ^rrtjisxfu of goods in possession ot 409 
 
 whether agent of vendee to receive goods, or agent to forward them ... 409 
 duties as to lien for freight where shipo\vner enters and lands 
 goods 8GI et seq^ 
 
 WARRANTY 
 
 by master, when binding on o-miers 88 
 
 of seaworthiness of ship 281-285 
 
 to deliver goods 86 
 
 to sail with convoy — Bee Convoy... ... ... ... ... ... 255 
 
 implied, as to efforts to secure seaworthiness, in agreement with seamen 900 
 
 WATER 
 
 complaint by crew respecting 684 
 
 for passenger ships 812 et seq. 830 
 
 WEIGHT 
 
 placing imdue, on safety valve 704 
 
 WHARF 
 
 delivery of goods at, by master 322 
 
 to mate 285 
 
 WHARFINGER 
 
 what discharges his responsibility 285 
 
 whether agent of vendee to receive goods, or agent to forward them . . . 409 
 
 WILLS OF DECEASED SEAMEN 
 
 powers of Board of Trade as to 677 
 
 WINDING-UP ACT 
 
 seamen's fmid ... 620, 631, 926 
 
 WISBUY 
 
 laws of iv 
 
 WITNESS 
 
 when attesting, need not be called ... ... ... ... ... 751 
 
 master a competent, when prosecuted for taking unseaworthy ship 
 
 to sea 900 
 
 WOMAN 
 
 wages earned by a, for services performed on board a ship ... ... 464 
 
 pregnant, no freight for infant ... ... ... ... ... ... 350 
 
 WRECKS, CASUALTIES, AND SALVAGE— See Salvage. 
 
 Crowni's rights to wrecks ... ... ... ... ... ... ... 857 
 
 appointment of wreck commissioners ... ... ... ... ... 909 
 
 assessors and rules of procedure on investigations into shipjDing 
 
 casualties '. 909, 921 
 
 powers of commissioners as to ships in distress, &c. ... ... 912 
 
 rehearing and apx^eal 920
 
 INDEX. 
 
 Wrecks, Casualties, and Salvage — contimird. page 
 
 iuc|uiries into -wrecks — 
 
 incjiiiries to 1)6 instituted in cases of ... ... ... ... 730 
 
 investigation before justices ... ... ... ... ... 730, 909 
 
 stipendiary magistrate to be member of local marine board ... 730 
 costs of investigations... ... ... ... ... ... ... 730 
 
 investigations in Scotland 731 
 
 master or mate to deliver certificate if required, until close of 
 
 inquiry 731 
 
 appointnient and duties of receivers ... ... ... ... ... 559 
 
 Board of Trade to have superintendence of wreck, svitli power to 
 
 aj)point receivers 731, 794 
 
 admiral not to interfere with wreck ... ... ... ... 731 
 
 duty of receiver when ship stranded or in distress ... ... 731 
 
 powers of receiver to procure assistance 731 
 
 articles washed on shore, or lost, or taken from ship, to be 
 
 delivered to receiver ... ... ... ... ... ... 732 
 
 power to receiver to suppress plunder and disorder ... ... 732 
 
 powers of receiver, by whom to be exercised in his absence ... 732 
 power to pass over adjoining lands with carriages... ... ... 732 
 
 penalty on owners and occupiers of land refusing to allow persons 
 
 and carriages to pass over their land ... ... ... ... 732 
 
 power of receiver to take examination as to ships in distress ... 733 
 rules to be observed by persons finding wreck ... ... 733, 857 
 
 power to receivers to seize concealed wreck 733 
 
 notice of Avreck to be given by receiver ... ... ... ... 734 
 
 goods deemed perishable or of small value may be sold immediately 734 
 in cases where any lord of the manor or other person is entitled 
 
 to unclaimed wreck, receiver to give notice to him ... ... 734 
 
 jDayments to be made to receiver ... ... ... ... 734, 794 
 
 disputes as to sums payable to receiver, to be determined by 
 
 Board of Trade 734 
 
 application of fees 734, 794, 926 
 
 delivery of wreck by receiver not to j)rejudice title ... ... 857 
 
 salvage in the United Kingdom 561 
 
 salvage in respect of services in the United Kingdom . . . 734, 856 
 salvage for life may be paid by Board of Trade out of Mercantile 
 
 Marine Fund 734 
 
 disputes as to salvage, how settled ... ... ... ... ... 735 
 
 manner in which justices may decide them 735, 856 
 
 costs of arbitration 736 
 
 justices may call for documents and administer oaths 736 
 
 appeal to Court of Admiralty ... ... ... ... ... 736 
 
 justices to transmit copy of proceedings, and certificate of value 
 
 to Court of Appeal 736 
 
 payment of salvage, to whom made in cases of dispute as to 
 
 apportionment 736 
 
 apportionment of salvage 736 
 
 manner of enforcing payment of salvage 737 
 
 power of receiver to sell property sah'cd in cases of non-payment 737 
 subject to payment of expenses, fees, and salvage, owner entitled 
 
 to wreck 737 
 
 jurisdiction of the High Court of Admiralty — 
 
 Court of Admiralty may decide salvage cases, on sea or land . . . 738 
 unclaimed wreck in the United Kingdom — 
 
 receiver to deliver up possession of unclaimed wreck to lord of 
 
 manor, or other person entitled ... ... ... ... 738 
 
 disputed title to wreck, how to be decided... ... ... ... 738 
 
 appeal from decision of justices 738 
 
 power of the Board of Trade, on behalf of the Cro\\n, to purchase 
 
 rights to wreck 738 
 
 unclaimed wreck to be sold 738,926
 
 INDEX. 
 
 Wrecks, Casualties, and Salvage— continued. page 
 
 offences in respect of -wTeck — 
 
 in case of shiji plundered by tumultuous assemblage, tbe hundred 
 
 to be liable for damages ... 739 
 
 penalty lor plundering, for obstructing saving of sbipwTecked 
 
 property and secreting the*sanie 739 
 
 l^enalty for selling wreck in foreign ports ... 739 
 
 dealers in marine stores and manufacturers of anchors — 
 
 regulations to be observed by dealers in 739 
 
 permit to cut up cables, how obtained ... ... ... ... 740 
 
 permit to be advertised before acting thereon 740 
 
 manufacturers to place marks on anchors 740 
 
 salvage by her Majesty's shij^s — 
 
 no claim for salvage to be allowed for loss or risk of her Majesty's 
 
 ships or prop>erty ... ... ... ... ... ... 741 
 
 claims for salvage by her Majesty's officers not to be determined 
 
 without consent of Admiralty 741 
 
 steps to be taken when salvage services rendered by them abroad 741 
 consular officer or judge to tix amount, for which bond to be given 742 
 on master executing bond, the right of detention to cease ... 742 
 
 provision for additional security in the case of ships owned by 
 
 l^ersons resident out of her Majesty's dominions 742 
 
 documents to be sent to England ... ... ... ... ... 742 
 
 Avhom the bond sliall bind ... ... ... ... ... ... 742 
 
 court in which it is to be adjudicated on ... 742 
 
 power of High Court of Admiralty to enforce bonds 743 
 
 saving clause ... ... ... ... ... ... ... ... 743 
 
 documents free from dut}' 743 
 
 punishment for forgery and false representations 743 
 
 salvage (general) 564 
 
 voluntary agreement may be made which shall have the same 
 
 effect as the bond above mentioned ... ... ... ... 743 
 
 powers of courts having Admiralty jiu'isdiction to apportion 
 
 salvage 743 
 
 miscellaneous — 
 
 foreign goods found derelict, &c., subject to duties on importation 744 
 goods saved from ships to be forwarded to ports ol original 
 
 destmation ... ... ... ... ... ... ... 744 
 
 provision as to certain terms in Scotland 744 
 
 remuneration for ser-s"ice by coastguard ... ... ... ... 800 
 
 application of proceeds of unclaimed wreck 926 
 
 WRECK OF FOREIGN SHIPS 
 
 consul-general to be deemed agent of OAVTiers 800 
 
 WRECK, REMOVAL OF 
 
 act to facilitate 916 
 
 expenses of lighthouses incorporated in 927 
 
 y. 
 
 YACHTS 
 
 application to certain, of part of Part III. of M. S. Act, 1854 ... 848 
 lists of crews of, to be delivered or transmitted to registrar 657 
 
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